Gopal Bhargava vs The State Of Madhya Pradesh on 2 November, 2020

[Cites 30, Cited by 0]

Madhya Pradesh High Court

Gopal Bhargava vs The State Of Madhya Pradesh on 2 November, 2020

Equivalent citations: AIRONLINE 2020 MP 1126

1. This is a petition under Section 482 Cr.P.C. for quashing FIR No. 909/2019 registered at Police Station-Jhabua u/S 153-B(1), 505(2) and 188 IPC and Section 123(1)(2) and 125 of the Representation of the People Act.

2. Whether the police can register FIR (u/s 188 IPC), investigate the case and file the charge-sheet in respect of violation of order duly promulgated by any public authority, is the primary issue involved in this petition; which is squarely covered by and has been set at rest in the judgement of the Hon'ble Supreme Court rendered in C. Muniyappan case (C. Muniyappan and others vs State of Tamilnadu (2010) 9 SCC

567) and followed by the Division Bench of this Court in the case of Jyotiraditya Scindia (State of Madhya Pradesh and another vs Jyotiraditya Scindia 2014 SCC Online MP 1694). The relevant paras of the judgement delivered in Jyotiraditya Scindia case (supra) read as under:-

"4. Before the writ Court it was argued on behalf of the respondent/petitioner that for taking cognizance under Section 188 of IPC a compliant HIGH COURT OF MADHYA PRADESH BENCH AT INDORE MCRC No.44006/2019 2 has be made to the Court directly having jurisdiction in the matter in respect of offence committed under Section 188 of IPC and it was not for the police to register a case against the offenders for an offence under Section 188 of IPC and then to submit a report under Section 173 of the Cr.P.C., which is precisely the submission made by the learned counsel for the appellants before us also. Reliance has been placed on a judgment delivered by a Division Bench of the High Court of Punjab and Haryana in the case of Jiwan Kumar v. State of Punjab decided on 18- 03-2008 reported in 2008 Cri LJ 3576, (2008) 2 PLR 675, Paragraphs-10 and 11 are reproduced as under:-

10. It is admitted case of respondent No. 3 that FIR No. 128 (P3) was registered against the petitioner on 16.6.2005 under Section 188 IPC.

The petitioner was thereafter arrested and interrogated. After the completion of the investigation, the challan (final report under Section 173 of the Code) was presented against the petitioner before learned Chief Judicial Magistrate, Mansa on 20.12.2005 and the charge was framed on 20.1.2006. Further that the case is now fixed for recording of prosecution evidence.

11. It is, thus, clear that the proceedings against the petitioner under Section 188 IPC have been initiated on the basis of the 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. 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. Resultantly, the petition is allowed. Promulgation order dated 27.5.2005 (P-2) issued by the District Magistrate, Mansa is quashed. Similarly, FIR No. 128, dated 16.6.2005 registered at Police Station City HIGH COURT OF MADHYA PRADESH BENCH AT INDORE MCRC No.44006/2019 3 Mansa under Section 1-88 IPC (P-3) and all the proceedings taken thereunder against the petitioner are also quashed and set aside."

5. In view of the aforesaid, the learned Single Judge has further observed as under:-

"12. The Division Bench of Punjab and Haryana High Court has held that in respect of Section 188 of I.P.C., taking into account the statutory provisions as contained u/s 195 of Code of Criminal Procedure a complaint has to be made in writing to the court by the Public Servant. The Division Bench has further held that it is not open for the Police to register a case against the offender u/s 188 of I.P.C. and then to submit a report u/s 173 of the Code of Criminal Procedure Code, 1973. Thus, keeping in view the judgment delivered by the Division Bench, this court is of the considered opinion that action of the respondents in registering the FIR is certainly contrary to the statutory provisions as contained u/s 195 of the Code of Criminal Procedure, 1973 and the FIR has to pave the path of extinction.

15. The Apex court in the case of C. Muniappan v. State of Tamilnadu reported in (2010) 9 SCC 567 in paragraphs 28, 29, 33, 35 and 36 held as under:-

"28. Section 195(a)(i) Cr. P.C. bars the court from taking cognizance of any offence punishable under Section 188 IPC or abetment or attempt to commit the same, unless, there is a written complaint by the public servant concerned for contempt of his lawful order. The object of this provision is to provide for a particular procedure in a case of contempt of the lawful authority of the public servant. The court lacks competence to take cognizance in certain types of offences enumerated therein. The HIGH COURT OF MADHYA PRADESH BENCH AT INDORE MCRC No.44006/2019 4 legislative intent behind such a provision has been that an individual should not face criminal prosecution instituted upon insufficient grounds by persons actuated by malice, ill-will or frivolity of disposition and to save the time of the criminal courts being wasted by endless prosecutions. This provision has been carved out as an exception to the general rule contained under Section 190 Cr. P.C. that any person can set the law in motion by making a complaint, as it prohibits the court from taking cognizance of certain offences until and unless a complaint has been made by some particular authority or person. Other provisions in the Cr. P.C. like sections 196 and 198 do not lay down any rule of procedure, rather, they only create a bar that unless some requirements are complied with, the court shall not take cognizance of an offence described in those Sections. (vide Govind Mehta v. The State of Bihar, AIR 1971 SC 1708; Patel Laljibhai Somabhai v. The State of Gujarat, AIR 1971 SC 1935; Surjit Singh v. Balbir Singh, (1996) 3 SCC 533: (AIR 1996 SC 1592: 1996 AIR SCW 1850); State of Punjab v. Raj Singh, (1998) 2 SCC 391: (AIR 1998 SC 768:

1998 AIR SCW 483); K. Vengadachalam v. K.C. Palanisamy, (2005) 7 SCC 352; and Iqbal Singh Marwah v. Meenakshi Marwah, AIR 2005 SC 2119): (2005 AIR SCW 1929)

29. The test of whether there is evasion or non-compliance of Section 195 Cr. P.C. or not, is whether the facts disclose primarily and essentially an offence for which a complaint of the court or of a public servant is required. In Basir-ul-

Haq v. The State of West Bengal, AIR HIGH COURT OF MADHYA PRADESH BENCH AT INDORE MCRC No.44006/2019 5 1953 SC 293; and Durgacharan Naik v.

State of Orissa, AIR 1966 SC 1775, this Court held that the provisions of this Section cannot be evaded by describing the offence as one being punishable under some other sections of IPC, though in truth and substance, the offence falls in a category mentioned in Section 195 Cr.

P.C. Thus, cognizance of such an offence cannot be taken by mis-describing it or by putting a wrong label on it.

33. Thus, in view of the above, the law can be summarized to the effect that there must be a complaint by the pubic servant whose lawful order has not been complied with. The complaint must be in writing. The provisions of Section 195 Cr. P.C. are mandatory. Noncompliance of it would vitiate the prosecution and all other consequential orders. The Court cannot assume the cognizance of the case without such complaint. In the absence of such a complaint, the trial and conviction will be void abinitio being without jurisdiction.

35. Undoubtedly, the law does not permit taking cognizance of any offence under Section 188 IPC, unless there is a complaint in writing by the competent public servant. In the instant case, no such complaint had ever been filed. In such an eventuality and taking into account the settled legal principles in this regard; we are of the view that it was not permissible for the trial Court to frame a charge under Section 188 IPC. However, we do not agree with the further submission that absence of a complaint under Section 195 Cr. P.C. falsifies the genesis of the prosecution's case and is fatal to the entire prosecution case.

HIGH COURT OF MADHYA PRADESH BENCH AT INDORE MCRC No.44006/2019 6

36. There is ample evidence on record to show that there was a prohibitory order; which had been issued by the competent officer one day before; it had been given due publicity and had been brought to the notice of the public at large; it has been violated as there is no denial even by the accused persons that there was no 'Rasta Roko Andolan'. Unfortunately, the agitation which initially started peacefully turned ugly and violent when the public transport vehicles were subjected to attack and damage. In such an eventuality, we hold that in case the charges under Section 188 IPC are quashed, it would by no means have any bearing on the case of the prosecution, so far as the charges for other offences are concerned."

16. The Apex court in the aforesaid case was dealing with an issue wherein two FIRs are clubbed together, one was in respect of a murder for which an offence u/s 302 of the Penal Code, 1860 was registered against the accused person and one was in respect of an offence u/s 188 of the Penal Code, 1860. The common charge sheet was issued clubbing both the FIRs and the Apex court on the ground that there was evasion or non-compliance on the part of the state in respect of section 195 has held the entire trial in respect of offence falling u/s 188 of the Penal Code, 1860 to be void ab- initio, meaning thereby without jurisdiction.

17. Resultantly, in the present case as there is no compliant as required u/s 195 of the Code of Criminal Procedure, keeping in view the judgment delivered by the apex court and also keeping in view the judgment delivered by the division Bench of Punjab and Haryana High Court in the case of Jiwan Kumar v. State of HIGH COURT OF MADHYA PRADESH BENCH AT INDORE MCRC No.44006/2019 7 Punjab (supra), this court is of the considered opinion that the statutory provisions as contained u/s 195 of the Code of Criminal Procedure, 1973 have not been followed and, therefore, the FIR registered by the Police at Crime No. 60/2011 for an offence under section 188 of the Penal Code, 1860 dated 13- 02-2011, is accordingly quashed.

No order as to costs."

6. Applying the principles laid down by the Hon'ble Supreme Court and the provisions contained under Section 188 of IPC and Section 195 of Cr.P.C. as well as the judgment delivered by the Punjab and Haryana High Court in Jiwan Kumar's case (Supra) which has also been quoted in the impugned order, the learned Single Judge held that in this case there was a violation of the statutory provisions contained under Section 195 Cr.P.C. in registering the FIR as Crime No. 60/2011 for an offence under Section 188 of IPC dated 13.02.2011, the same was accordingly quashed.

7. Having gone through the provisions of the law quoted and the judgment of the Apex Court as also the judgment of Punjab and Haryana High Court and in the absence of any written submissions despite opportunity granted, we dismiss the appeal.

3. In this regard we can also usefully refer order dated 28/11/2014 passed in Ashok Agrawal vs. State of M.P. MCRC No. 5306/2014 (Indore Bench).

4. The other disagreement between the parties is that the State was of the opinion that the speech of the petitioner delivered on 30th September 2019 in Jhabua during nomination process of the bye-election of constituency No. 193 of the Madhya Pradesh Legislative Assembly has an effect of aggravating differences between the supporters of the two contesting candidates by referring them as representatives of HIGH COURT OF MADHYA PRADESH BENCH AT INDORE MCRC No.44006/2019 8 the two countries namely, India and Pakistan and this, according to the State, was derogatory and was intended to give rise to feeling of enmity and to excite hatred amongst the communities and, therefore, the petitioner is prima facie guilty of the offences punishable under the Penal Code and the Representation of People Act. The precise words spoken by the petitioner in his speech before the congregation were:

**yM+fd;ka lqjf{kr ugha gSa ;fn mudks lqjf{kr j[kuk gS rks t:jh gS fd gekjs Hkkuw HkkbZ dks ftrk;k tk, vkSj nwj rd ;g lans'k igqapk;k tk, fd ;g jryke dh tks ?kVuk gqbZ gS mldh rks ge fuank djrs gSa Qkalh dh ltk mudks gksuk pkfg;s ysfdu Hkwfj;k ;gka ij ;g ?kVuk u gks blfy;s cgqr T;knk t:jh gS fd ge Hkkjrh; turk ikVÊ dks thrk,a vU;Fkk ;gk¡ ls ;g eSlst tk,xk fd ikfdLrku dh leFkZd ljdkjsa dkaxzsl ikVÊ vkt dy gj fo"k; esa ikfdLrku dk leFkZu dj jgh gSA ikfdLrku dks leFkZu nsus okyh ljdkj dk çfrfufèk thr x;k vkSj fgUnqLrku dk vkneh tks Hkkjrh; gS] tks vkfnoklh gS] tks xk¡o esa esgur djrk gS] tks xfy;ksa esa esgur djrk gS dguk pkgrk gw¡ fe=ksa fd mldh ;fn ijkt; gksrh gS rks ;g fganqLrku dh ijkt; gksxhA vkidh ijkt; gksxh] vkidh gkj gksxhA bl dkj.k eSa foÜokl ds lkFk dg ldrk gw¡ fd bl le; ns'k dh bTt+r nk¡o ij gSA ;g fdlh nks ikVÊ dk pquko ugha gS] cfYd fganqLrku vkSj ikfdLrku ds chp esa pquko gSA ;s gekjs Hkkuq HkkbZ fgUnqLrku dk çfrfufèkRo djrs gSa vkSj dkafryky Hkwfj;k ikfdLrku dk çfrfufèkRo djrs gSaA oSlh leFkZu rkd+rksa dk çfrfufèkRo djrs gSa] tks ikfdLrku dks çksRlkgu nsrh gSa] blfy, fe=ksa eSa vkt vkils dguk pkgrk gw¡ gkFk mBkdj crkb, ge fganqLrku ds lkFk gSa ;k ikfdLrku ds lkFk gSaA vki gkFk mBkdj crkb;s fd ge fgUnqLrku ds lkFk gSa lHkhA gkFk mBkdj crkb;s fd ge fgUnqLrku ds lkFk gSa lHkhA Hkkjr ekrk dh t; cksydj ,d ckj Ukkjk yxk;saxs Hkkjr ekrk dh t;A Hkkjrh; turk ikVhZ ftUnkcknA**

5. Dr. Abhay Singh Kharari, SDO(R)/returning officer, received a complaint/letter No. 1789/19 dated 30/09/2019 from M.P. Congress Committee and transmitted the same on the same day to the SHO, Kotwali Jhabua with a request to HIGH COURT OF MADHYA PRADESH BENCH AT INDORE MCRC No.44006/2019 9 register an FIR/case against the petitioner for preaching and practising and abetting others to commit cognizable and non- bailable offences under Section 153B(1)(a), 505(2), 188 The Indian Penal Code (45 of 1860) and Section 123(1)B, 125 of The Representation of the People Act, 1951 (43 of 1951) stating that the afore-stated speech of the petitioner violates the order of the District Magistrate (DM) dated 21/09/2019 promulgated under Section 144 Cr.P.C. the petitioner

6. The order of the DM promulgated u/S 144 Cr.P.C. has not been placed with the charge-sheet filed against the petitioner.

7. For the sake of convenience, relevant provisions of the law allegedly violated by the petitioner, which has made him liable for punishment, are being reproduced here. Section 153B(1)(a) and 505(2) IPC reads thus:

153B. Imputations, assertions prejudicial to national integration. (1) Whoever, by words either spoken or written or by signs or by visible representations or otherwise,-

(a) makes or publishes any imputation that any class of persons cannot, by reason of their being members of any religious, racial, language or regional group or caste or community, bear true faith and allegiance to the Constitution of India as by law established or uphold the sovereignty and integrity of India, or

(b) asserts, counsels, advises, propagates or publishes that any class or persons shall, by reason of their being members of any religious, racial, language or regional group or caste or community, be denied or deprived of their rights as citizens of India, or

(c) makes or publishes any assertion, counsel, plea or appeal concerning the obligation of any class of persons, by reason of their being members of any HIGH COURT OF MADHYA PRADESH BENCH AT INDORE MCRC No.44006/2019 10 religious, racial, language or regional group or caste or community, and such assertion, counsel, plea or appeal causes or is likely to cause disharmony or feelings of enmity or hatred or ill-will between such members and other persons, shall be punished with imprisonment which may extend to three years, or with fine, or with both.

(2) Whoever commits an offence specified in sub-

section (1), in any place of worship or in any assembly engaged in the performance of religious worship or religious ceremonies, shall be punished with imprisonment which may extend to five years and shall be liable to fine.

[505. Statements conducing to public mischief. - [(1) Whoever makes, publishes or circulates any statement rumour or report, -

(a) with intent to cause, or which is likely to cause, any officer soldier, [sailor or airman] in the Army, [Navy or Air Force] [of India] to mutiny or otherwise disregard or fail in his duty as such]; or

(b) with intent to cause, or which is likely to cause, fear or alarm to the public, or to any section of the public whereby any person may be induced to commit an offence against the State or against the public tranquility; or

(c) with intent to incite, or which is likely to incite, any class or community of persons to commit any offence against any other class or community; shall be punished with imprisonment which may extend to [three years], or with fine, or with both. [(2) Statements creating or promoting enmity, hatred or ill-will between classes. - Whoever makes, publishes or circulates any statement or report containing rumour or alarming news with intent to create or promote, or which is likely to create or promote, on grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever, feelings of enmity, hatred or ill-will between different religious, racial, language or regional groups or castes or communities, shall be punished with imprisonment HIGH COURT OF MADHYA PRADESH BENCH AT INDORE MCRC No.44006/2019 11 which may extend to three years, or with fine, or with both.

(3) Offence under sub-section (2) committed in place of worship, etc. - Whoever commits an offence specified in sub-section (2) in any place of worship or in an assembly engaged in the performance of religious worship or religious ceremonies, shall be punished with imprisonment which may extend to five years and shall also be liable to fine.] Exception. - It does not amount to an offence, within the meaning of this section, when the person making, publishing or circulating any such statement rumour or report, has reasonable grounds for believing that such statement, rumour or report is true and makes, publishes or circulates it [in good faith and] without any such intent as aforesaid.]

8. Section 123(1)B and 125 of The Representation of The People Act, 1951 are as under:

123. Corrupt practices. - The following shall be deemed to be corrupt practices for the purposes of this Act:-

[(1) "Bribery", that is to say,-

(A) any gift, offer or promise by a candidate or his agent or by any other person with the consent of a candidate or his election agent of any gratification, to any person whomsoever, with the objects, directly or indirectly, of inducing-

(a) a person to stand or not to stand as, or ] [to withdraw or not to withdraw] [from being a candidate at an election; or

(b) an elector to vote or refrain from voting at an election, or as a reward to-

(i) a person for having so stood or not stood, or for ] [having withdrawn or not having withdrawn] [his candidature; or

(ii) an elector for having voted or refrained from voting;

(B) the receipt of, or agreement to receive, any gratification, whether as a motive or a reward-

(a) by a person for standing or not standing as, or HIGH COURT OF MADHYA PRADESH BENCH AT INDORE MCRC No.44006/2019 12 for] [withdrawing or not withdrawing] [from being, a candidate; or

(b) by any person whomsoever for himself or any other person for voting or refraining from voting, or inducing or attempting to induce any elector to vote or refrain from voting, or any candidate][to withdraw or not to withdraw] [his candidature.

Explanation.- For the purposes of this clause the term "gratification" is not restricted to pecuniary gratifications or gratifications estimable in money and it includes all forms of entertainment and all forms of employment for reward but it does not include the payment of any expenses bona fide incurred at, or for the purpose of, any election and duly entered in the account of election expenses referred to in section 78.] (2) Undue influence, that is to say, any direct or indirect interference or attempt to interfere on the part of the candidate or his agent, or of any other person [with the consent of the candidate or his election agent], with the free exercise of any electoral right:

Provided that-

(a) without prejudice to the generality of the provisions of this clause any such person as is referred to therein who-

(i) threatens any candidate or any elector, or any person in whom a candidate or an elector is interested, with injury of any kind including social ostracism and ex-communication or expulsion from any caste or community; or

(ii) induces or attempts to induce a candidate or an elector to believe that he, or any person in whom he is interested, will become or will be rendered an object of divine displeasure or spiritual censure, shall be deemed to interfere with the free exercise of the electoral right of such candidate or elector within the meaning of this clause;

(b) a declaration of public policy, or a promise of public action, or the mere exercise of a legal right without intent to interfere with an electoral right, HIGH COURT OF MADHYA PRADESH BENCH AT INDORE MCRC No.44006/2019 13 shall not be deemed to be interference within the meaning of this clause.

[(3) The appeal by a candidate or his agent or by any other person with the consent of a candidate or his election agent to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language or the use of, or appeal to, religious symbols or the use of, or appeal to, national symbols, such as the national flag or the national emblem, for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate:] [Provided that no symbol allotted under this Act to a candidate shall be deemed to be a religious symbol or a national symbol for the purposes of this clause.] [(3-A) The promotion of, or attempt to promote, feelings of enmity or hatred between different classes of citizens of India on grounds of religion, race, caste, community, or language, by a candidate or his agent or any other person with the consent of a candidate or his election agent for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate.] [(3-B) The propagation of the practice or the commission of sati or its glorification by a candidate or his agent or any other person with the consent of the candidate or his election agent for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate.

Explanation .-For the purposes of this clause, "sati" and "glorification" in relation to sati shall have the meanings respectively assigned to them in the Commission of Sati (Prevention) Act, 1987.] (4) The publication by a candidate or his agent or by any other person, [with the consent of a candidate or his election agent], of any statement of fact which is false, and which he either believes to be false or does not believe to be true, in relation to the personal character or conduct of any candidate, or in relation to the candidature, or withdrawal, [* * *] of any HIGH COURT OF MADHYA PRADESH BENCH AT INDORE MCRC No.44006/2019 14 candidate, being a statement reasonably calculated to prejudice the prospects of that candidate's election. (5) The hiring or procuring, whether on payment or otherwise, of any vehicle or vessel by a candidate or his agent or by any other person [with the consent of a candidate or his election agent][, or the use of such vehicle or vessel for the free conveyance] of any elector (other than the candidate himself, the members of his family or his agent) to or from any polling station provided under section 25 or place fixed under sub-section (1) of section 29 for the poll :

Provided that the hiring of a vehicle or vessel by an elector or by several electors at their joint costs for the purpose of conveying him or them to and from any such polling station or place fixed for the poll shall not be deemed to be a corrupt practice under this clause if the vehicle or vessel so hired is a vehicle or vessel not propelled by mechanical power:

Provided further that the use of any public transport vehicle or vessel or any tramcar or railway carriage by elector at his own cost for the purpose of going to or coming from any such polling station or place fixed for the poll shall not be deemed to be a corrupt practice under this clause.

Explanation .-In this clause, the expression "vehicle" means any vehicle used or capable of being used for the purpose of road transport, whether propelled by mechanical power or otherwise and whether used for drawing other vehicles or otherwise. (6) The incurring or authorizing of expenditure in contravention of section 77.

(7) The obtaining or procuring or abetting or attempting to obtain or procure by a candidate or his agent, or by any other person [with the consent of a candidate or his election agent], any assistance (other than the giving of vote) for the furtherance of the prospects of that candidate's election, [from any person whether or not in the service of the Government] and belonging to any of the following classes, namely:-

HIGH COURT OF MADHYA PRADESH BENCH AT INDORE MCRC No.44006/2019 15

(a) Gazetted Officers;

(b) stipendiary judges and magistrates;

(c) members of the armed forces of the Union;

(d) members of the police forces;

(e) excise officers;

[(f) revenue officers other than village revenue officers known as lambardars, malguzars, patels, deshmukhs or by any other name, whose duty is to collect land revenue and who are remunerated by a share of, or commission on, the amount of land revenue collected by them but who do not discharge any police functions; and]

(g) such other class of persons in the service of the Government as may be prescribed:

[Provided that where any person, in the service of the Government and belonging to any of the classes aforesaid, in the discharge or purported discharge of his official duty, makes any arrangements or provides any facilities or does any other act or thing, for, to, or in relation to, any candidate or his agent or any other person acting with the consent of the candidate or his election agent (whether by reason of the office held by the candidate or for any other reason), such arrangement, facilities or act or thing shall not be deemed to be assistance for the furtherance of the prospects of that candidate's election.] [(h) class of persons in the service of a local authority, university, government company or institution or concern or undertaking appointed or deputed by the Election Commission in connection with the conduct of elections] [(8) Booth capturing by a candidate or his agent or other person.] Explanation .-(1) In this section the expression "agent" includes an election agent, a polling agent and any person who is held to have acted as an agent in connection with the election with the consent of the candidate.

(2) For the purposes of clause (7), a person shall be deemed to assist in the furtherance of the prospects HIGH COURT OF MADHYA PRADESH BENCH AT INDORE MCRC No.44006/2019 16 of a candidate's election if he acts as an election agent [* * *] of that candidate.

[(3) For the purposes of clause (7), notwithstanding anything contained in any other law, the publication in the Official Gazette of the appointment, resignation, termination of service, dismissal or removal from service of a person in the service of the Central Government (including a person serving in connection with the administration of a Union territory) or of a State Government shall be conclusive proof-

(i) of such appointment, resignation, termination of service, dismissal or removal from service, as the case may be, and

(ii) where the date of taking effect of such appointment, resignation, termination of service, dismissal or removal from service, as the case may be, is stated in such publication, also of the fact that such person was appointed with effect from the said date, or in the case of resignation, termination of service, dismissal or removal from service, such person ceased to be in such service with effect from the said date.] [(4) For the purposes of clause (8), "booth capturing"

shall have the same meaning as in section 135-A.] [125. Promoting enmity between classes in connection with election. - Any person who in connection with an election under this Act promotes or attempts to promote on grounds of religion, race, caste, community or language, feelings of enmity or hatred, between different classes of the citizens of India shall be punishable with imprisonment for a term which may extend to three years, or with fine, or with both.]

9. The crux of the law is; if someone induces or impresses, directly or indirectly, to the electors by offering illegal gratification in what-so-ever form/manner, acts prejudicially against the national integrity/interests, disturbs harmony, disseminates, intersperses or propagates enmity, hatred or ill- HIGH COURT OF MADHYA PRADESH BENCH AT INDORE MCRC No.44006/2019 17 will amongst the members of the society on the basis of religion, race, caste, community, language or region and such act causes or is likely to cause disharmony or effects feelings of the electors, he may be guilty of adopting corrupt practices and may be punished under the aforesaid provisions/laws.

10. Hon'ble the Supreme Court had an occasion to consider what a "hate speech" is, in Pravasi Bhalai Sangathan v. Union of India, AIR 2014 SC 1591, I may quote the relevant para as under:

"7. Hate speech is an effort to marginalise individuals based on their membership in a group. Using expression that exposes the group to hatred, hate speech seeks to delegitimise group members in the eyes of the majority, reducing their social standing and acceptance within society. Hate speech, therefore, rises beyond causing distress to individual group members. It can have a social impact. Hate speech lays the ground-work for later, broad attacks on vulnerable that can range from discrimination, to ostracism, segregation, deportation, violence and, in the most extreme cases, to genocide. Hate speech also impacts a protected group's ability to respond to the substantive ideas under debate, thereby placing a serious barrier to their full participation in our democracy."

11. The power under Section 482, Cr.P.C. is extraordinary in nature and has to be used sparingly. It is not to be exercised in a routine manner, but for limited purposes to give effect to any order under the Code, to prevent abuse of process of any Court or otherwise to secure ends of justice. Time and again, Apex Court and various High Courts, including our own High Court, have explained the circumstances when the exercise of such powers would be justified. Though there cannot be a straight HIGH COURT OF MADHYA PRADESH BENCH AT INDORE MCRC No.44006/2019 18 jacket formula, one thing is very clear that it should not be used to cut short the entire process of trial. Sifting and weighing of the evidence is not permissible at this stage but if from a bare perusal of the FIR or the complaint, it appears that it does not disclose any offence or it appears that it is frivolous, collusive or oppressive from the face of it, the Court may exercise this inherent power to secure the ends of justice. This does not include as to whether prosecution is likely to establish its case beyond a reasonable doubt or not or whether the evidence in question is reliable or not or whether on a reasonable appreciation of the evidence produced, the accusation would be sustained or not. It need not go into various aspects in detail but it would suffice to refer a few authorities dealing all these matters in detail, viz, State of Haryana v. Ch. Bhajan Lal, 1992 Supp (1) SCC 335 : (AIR 1993 SC 1348), Mahesh Chaudhary v. State of Rajasthan (2009) 4 SCC 443, Shakson Belthissor v. State of Kerala and Anr, AIR 2010 SC (Supp) 864, Mosiruddin Munshi v. Md. Siraj, AIR 2014 SC 3352, Krishnanan Vs. Krishnaveni 1997 AIR SCW 950 : AIR 1997 SC 987, Popular Muthiah v. State represented by Inspector of Police, (2006) 7 SCC 296, Hamida v. Rashid alias Rasheed, (2008) 1 SCC 474 : (AIR 2007 SC (Supp) 361), Dr. Monica Kumar v. State of U.P., (2008) 8 SCC 781 : (AIR 2008 SC 2781), M.N. Ojha v. Alok Kumar Srivastav, (2009) 9 SCC 682 : (AIR 2010 SC 201), State of A.P. v. Gourishetty Mahesh, JT 2010 (6) SC 588 :

(2010 AIR SCW 4386) and Iridium India Telecom Ltd. v. Motorola Incorporated, (2011) 1 SCC 74 : (AIR 2011 SC HIGH COURT OF MADHYA PRADESH BENCH AT INDORE MCRC No.44006/2019 19

20).

12. The substratum of the present case is as to whether the alleged speech of the petitioner dated 30/09/2019, full text of which is referred to above, promotes or attempts to promote feelings of enmity, hatred, disharmony, ill-will, etc. on the basis of caste, creed, community, religion, region etc. amongst different classes of the citizens of India.

13. How an appeal to the voters, such as the one made in the speech in question, should be viewed in the context of corrupt practices mentioned in the Act, has been explained by the Hon'ble Supreme Court in Kultar Singh v. Mukhtiar Singh reported in AIR 1965 SC 141. The relevant para 8 of this judgement is as under:

8. In considering the question as to whether the distribution of the impugned poster by the appellant constitutes corrupt practice under Section 123(3), there is one point which has to be borne in mind. The appellant had been adopted as its candidate by the Akali Dal Party. This Party is recognised as a political party by the Election Commission notwithstanding the fact that all of its members are only Sikhs. It is well-known that there are several parties in this country which subscribe to different political and economic ideologies, but the membership of them is either confined to, or predominantly held by, members of particular communities or religions. So long as law does not prohibit the formation of such parties and in fact parliamentary life, it would be necessary to recognises them for the purpose of election and remember that an appeal made by candidates of such parties for votes may, if successful, lead to their election and in an indirect way, may conceivably be influenced by consideration of religion, race, caste, community or language. This infirmity cannot perhaps be avoided so long as parties HIGH COURT OF MADHYA PRADESH BENCH AT INDORE MCRC No.44006/2019 20 are allowed to function and are recognised, though their composition may be predominantly based on membership of particular communities or religions.

That is why we think, in considering the question as to whether a particular appeal made by a candidate falls within the mischief of Section 123(3), courts should not be astute to read into the words used in the appeal anything more than can be attributed to them on its fair and reasonable, construction.

(Emphasis supplied)

14. In the backdrop of the aforesaid principles, reading the speech as a whole or a bare perusal of the complaint dated 30/09/2019 lodged by the SDO(R) reveals that there is nothing to show that the petitioner was trying to promote enmity between different groups. I am unable to decipher how the words spoken by the petitioner or so-called imputations or assertions made by him are prejudicial to national integration or that how it can be inferred that they reflect or intend to impress that any class of persons cannot, by reason of their being members of any religious, racial, language or regional group or caste or community, bear true faith and allegiance to the Constitution of India as by law established or uphold the sovereignty and integrity of India, or that they propagate that any class of persons shall, by reason of their being members of any religious, racial, language or regional group or caste or community, be denied or deprived of their rights as citizens of India, or they appeal any class of persons, by reason of their being members of any religious, racial, language or regional group or caste or community, and such appeal causes or is likely to cause disharmony or feelings of enmity or hatred or ill-will between such members and other persons. Even after HIGH COURT OF MADHYA PRADESH BENCH AT INDORE MCRC No.44006/2019 21 reading it repeatedly, I cannot construe it as a statement which was intended or may promote enmity, hatred or ill-will between classes on the grounds of religion, race, place of birth, residence, language, caste or community etc.

15. The alleged speech/act of the petitioner certainly does not amount to "bribe" the voters as defined in Section 123 of the Representation of the People Act. There is no allegation that he ever made any offer to induce the electors or would-be candidates of the election. He neither interfered nor intended to do so in the free exercise of the electoral right. He never threatened any candidate or elector, or any person in whom the candidate or an elector was interested, with an injury of any kind including social ostracism and ex-communication or expulsion from any caste or community. He did not induce any candidate or elector to believe that he, or any person in whom he is interested, will become or will be rendered an object of divine displeasure or spiritual censure. At the most, it appears that the petitioner is propagating enmity towards another country, demeaning it and those who support it. He has claimed himself a nationalist or patriot and painted his opponent as a supporter of the hostile country. He nowhere referred to the religion, race, caste, or community of his opponent and did not appeal not to vote for him as he belongs to a particular religion, race, caste, or community. The mere exercise of a legal right to convince the electors by claiming themselves patriot or by calling the opponent a supporter of a hostile county with a promise to give good governance without intent to interfere with an electoral right by adopting corrupt HIGH COURT OF MADHYA PRADESH BENCH AT INDORE MCRC No.44006/2019 22 practices or referring any religion, region, caste, or community, etc. cannot be deemed to be interference within the meaning of the provision of the aforesaid laws.

16. A cumulative reading of the relevant provisions of the law and the text of the speech along with the complaint made by the SDO, it is manifested in unambiguous terms that the perception of the SDO as well as the FIR lodged by him is misconceived. It is not in conformity with the prescribed law. There is nothing to consider that the speech was likely to promote enmity on the grounds of religion, race, language, caste or community or any other grounds whatsoever, disharmony or feelings of enmity, hatred or ill will between different religious, racial, linguistic or regional groups or castes or communities or was likely to disturb public tranquillity. It does not violet any provision of the relevant law; and does not tend to incite people to commit a crime, cause disorder or violence or breach of law or glorifies violence in any way. The object of the remark made by the petitioner in the speech in question was not wholly or mainly of religious or derogatory nature. It is, in this background, that I consider this a fit case to exercise the inherent power of the Court conferred under Section 482 Cr.P.C. Therefore, the petition stands allowed. The FIR No. 909/2019 registered at Police Station Jhabua Distt. Jhabua, the charge-sheet filed pursuant thereto and all the proceedings taken thereunder are hereby quashed. However, there is no order as to the cost.

                                                  (Virender Singh)
                                                       Judge
soumya      Soumy     Digitally signed by
                      Soumya Ranjan Dalai
                      DN: c=IN, o=High Court of
                      Madhya Pradesh Bench

            a         Indore,
                      postalCode=452001,
                      st=Madhya Pradesh,


            Ranjan
                      2.5.4.20=f4d2118683e843
                      22bb5797cf28ee6067153
                      8b737cf52962d84d7b527
                      897e53ac, cn=Soumya


            Dalai
                      Ranjan Dalai
                      Date: 2020.11.03 10:40:39
                      +05'30'

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