Telangana High Court
B.V. Naik Alias Bhagavantraya Naik vs The State Of Telangana on 7 March, 2024
Author: K. Lakshman
Bench: K. Lakshman
HON'BLE SRI JUSTICE K. LAKSHMAN
CRIMINAL PETITION No.2574 OF 2024
ORAL ORDER:
This Criminal Petition is filed under Section - 482 of the Code of Criminal Procedure, 1973, to quash the proceedings in C.C. No.389 of 2019 pending on the file of Additional Judicial Magistrate of First Class, at Gadwal.
2. The petitioners herein are arraigned as accused Nos.1 to 7 in the said case. The offences alleged against them are under Sections - 188 and 290 of IPC.
2. Heard Mr. P. Animi Reddy, learned counsel for the petitioners and the learned Assistant Public Prosecutor appearing on behalf of respondent No.1 - State.
3. The allegations levelled in the charge sheet are that, respondent No.2 being A.E.E. of Irrigation Department was appointed as Model Code of Conduct, Mandal Nodal Officer, Ghattu Mandal by the District Election Officer and District Collector. He (LW.1) lodged a report dated 02.12.2018 with the Station House Officer, Ghattu Police Station against the petitioners herein stating that they conducted public meeting in villages i.e., 2 KL,J Crl.P. No.2574 of 2024 Boyalagudam, Induvasi, Anthampally, Baligera, Macherla and Yellamdoddi of Gattu Mandal without taking any prior permission from the competent authority for election campaigning on behalf of MLA contested candidate of Congress Party in General Assembly Elections, 2018 and conducted meeting on 01.12.2018 between 1200 to 1600 hours, and thereby they have violated model code of conduct. Thus, the petitioners were committed the aforesaid offences.
4. Basing on the complaint lodged by respondent No.2, a case in Crime No.157 of 2018 was registered by Ghattu Police Station against the petitioners for the aforesaid offences and took up investigation.
5. After completion of investigation, the police filed charge sheet against the petitioners herein for the aforesaid offences and the same was taken on file as C.C. No.389 of 2019 by learned Additional Judicial Magistrate of First Class, Gadwal.
6. In N.T. Rama Rao v. The State of A.P., rep. by Public Prosecutor 1 while dealing with the offences under Sections - 188 and 283 of IPC, the learned Single Judge held as under: 1
. Criminal Petition No.5323 of 2009, decided on 17.09.2009 3 KL,J Crl.P. No.2574 of 2024 "5) Even if the allegation that the petitioner conducted public meetings at three road junctions contrary to the permission accorded for conducting of a public meeting only at one specified place is true, such a direction under Section 30 of the Police Act, 1861 could have been given only by the Superintendent or the Assistant Superintendent of Police of the District but not by any of their subordinates. If such a permission is granted under Section 30 of the Police Act, 1861 and is violated, Section 195 (1) (a) of Code of Criminal Procedure mandates that the complaint in this regard has to be made by the public servant concerned or some other person to whom such a public servant is administratively subordinate to enable any Court to take cognizance of an offence under Section 188 of Code of Criminal Procedure. In the present case, the charge sheet was filed by the Sub Inspector of Police, who could not have been the authority to grant permission for the public meeting and therefore, the complaint/charge sheet is in violation of the mandatory provision of Section 195(1)(a) of Code of Criminal Procedure.
6) That apart, the offence alleged to have been committed under Section 283 of the Indian Penal Code by the petitioners and others is obviously in consequence to the alleged 4 KL,J Crl.P. No.2574 of 2024 offence under Section 188 of Indian Penal Code and is not an independent of the same.
Even otherwise, the conduct of public meeting at three road junctions or obstruction to the traffic could not have been considered as causing any danger or injury to any person. In so far as the obstruction in any public way is concerned, which can also be covered by Section 283 of the Indian Penal Code, the charge sheet cites only one witness to speak about the traffic jam caused by the road show. But, when the conduct of the public meeting at least at one place has been permitted and if the gathering for that public meeting resulted in any inconvenience by way of obstructing the traffic, the same cannot be considered to be with necessary guilty mens rea to construe the existence of an offence punishable under Indian Penal Code. Under the circumstances, none of the offences alleged can be said to have any reasonable basis and in any view, the complaint/charge sheet being in violation of Section 195 (1) (a) of Code of Criminal Procedure, has to fail.
7) As the complaint has failed due to its unsustainability, the proceedings in their entirety have to fail, though the 1st accused alone approached this Court by way of this Criminal Petition."
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7. In Thota Chandra Sekhar v. The State of Andhra Pradesh, through S.H.O., P.S. Eluru Rural, West Godavari District 2 relying on various judgments including N.T. Rama Rao1 and the guidelines laid down by the Hon'ble Supreme Court in State of Haryana v. Bhajan Lal 3, more particularly, guideline No.6, which says that where there is an express legal bar engrafted 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 remedy to redress the grievance of the party, a learned Single Judge of High Court of Judicature at Hyderabad for the States of Telangana and Andhra Pradesh quashed the proceedings in the said C.C. by exercising power under Section - 482 of Cr.P.C. It further held that the proceedings shall not be continued due to technical defect of obtaining prior permission under Section - 155 (2) of Cr.P.C. and taking cognizance on the complaint filed by V.R.O. and it is against the purport of Section - 195 (1) (a) of Cr.P.C. 2 . Criminal Petition No.15248 of 2016, decided on 26.10.2016 3 . (1992) Supp. 1 SCC 335 6 KL,J Crl.P. No.2574 of 2024
8. In view of the above said authoritative pronouncements, coming to the case on hand, the only allegation against the petitioners herein is that they participated in election campaigning and conducted meeting without prior permission from competent authority on 01.12.2018 between 1200 to 1600 hours, and thereby they violated the Election Model Code of Conduct during the Election Code, and thereby committed the aforesaid offences. But, there is no mention in the charge sheet as to which orders that were disobeyed by the petitioners. In the present case, the complaint was filed by LW.1, AEE of Irrigation Department of Jogulamba - Gadwal District and the charge sheet is filed by the Sub-Inspector of Police, Ghattu Police Station and, therefore, the charge sheet is in violation of the mandatory provision of Section - 195 (1) (a) of Cr.P.C. Section - 188 of IPC deals with 'disobedience to order duly promulgated by public servant. It says 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, 7 KL,J Crl.P. No.2574 of 2024 annoyance or injury, or risk of obstruction, annoyance or injury, to any person lawfully employed, be punished with simple impris- onment 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. Whereas, Section - 290 of IPC deals with punishment for public nuisance in cases not otherwise provided for, and as per which whoever commits a public nuisance in any case not otherwise punishable by this Code, shall be punished with fine which may extend to two hundred rupees. The alleged public nuisance is consequence of violation of the orders. When the principal offence under Section - 188 of IPC itself cannot be taken cognizance by the Court, the consequent alleged public nuisance punishable under Section - 290 of IPC cannot be maintained. Further, the contents of the charge sheet are lacking the said ingredients. Therefore, applying the principle laid down in the above said two judgments and in view of the above said 8 KL,J Crl.P. No.2574 of 2024 discussion, the proceedings in C.C.No.389 of 2019 are liable to be quashed in exercise of powers under Section - 482 of Cr.P.C.
9. Accordingly, the present Criminal Petition is allowed and the proceedings in C.C. No.389 of 2019 pending on the file of Additional Judicial Magistrate of First Class, at Gadwal, are hereby quashed against the petitioners herein - accused Nos.1 to 7 only.
As a sequel, miscellaneous petitions, if any, pending in the Criminal Petition shall stand closed.
_________________ K. LAKSHMAN, J 7th March, 2024 Mgr