Andhra Pradesh High Court - Amravati
Kota Purushotham vs The State Of Andhra Pradesh on 11 November, 2022
Author: Prashant Kumar Mishra
Bench: Prashant Kumar Mishra
IN THE HIGH COURT OF ANDHRA PRADESH: AMARAVATI
HON'BLE MR. JUSTICE PRASHANT KUMAR MISHRA, CHIEF JUSTICE
CRIMINAL PETITION No.11266 of 2014
(Through physical mode)
Kota Purushotham
S/o Late Kota Venkatiah,
Aged about 55 years,
Occ:Social Worker,
R/o House No.9-55-15A,
New Maruthi Nagar, M.R.Palli,
Tirupati, Chittoor District.
..Petitioner/accused No.1
Versus
The State of Andhra Pradesh,
Rep. by its Public Prosecutor,
High Court at Hyderabad,
Through SHO,
Chittoor I Town Police Station and another.
...Respondents
Counsel for the petitioner : Mr.Keerthi Kiran Kota
Counsel for the respondents : Public Prosecutor
ORAL ORDER
Dt:11.11.2022 This criminal petition has been preferred under Section 482 of the Criminal Procedure Code (for short "Cr.P.C.") seeking quashment of all further proceedings in C.C.No.360 of 2011 on the file of the Court of the IV Additional District Munsif Magistrate, Chittoor Town, Chittoor District.
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2. During MLC election of Graduate Constituency of Chittoor in the year 2011, the petitioner allegedly pasted election poster on the compound wall of the office of the Revenue Divisional Officer at Chittoor. Against the said illegal act of the petitioner or his agent, the Revenue Divisional Officer, Chittoor presented an information to the Station House Officer, Chittoor I Town Police Station on 04.03.2011 alleging violation of model code of conduct by the petitioner, and consequently, liable for punishment. According to the information given by the Revenue Divisional Officer, the petitioner affixed wall poster meant for his election campaign on the compound walls of office of Revenue Divisional Officer and Sub-Divisional Magistrate, Chittoor and also on the compound walls of Zilla Grandhalaya Samstha, Chittoor, and thus he has violated the model code of conduct. Although the Revenue Divisional Officer has not mentioned as to the provision of law which was violated by the petitioner, the concerned police registered the F.I.R. for alleged violation of Sections 3 and 4 of the Andhra Pradesh Prevention of the Disfigurements of Open Places and Prohibition of obscene and objectionable posters and Advertisement Act, 1997 (for short "the Act No.28 of 1997")
3. It is contended that the provisions of the Act No.28 of 1997 would attract an offence when an advertisement is made contrary to the provisions of the Act No.28 of 1997. Affixing of election poster is 3 not an advertisement and therefore, the offence under the Act No.28 of 1997 is not attracted. It is also argued that the complaint is not presented in accordance with law. Therefore, on these grounds, the F.I.R. deserves to be quashed.
4. The Act No.28 of 1997 has been stated to be an Act to provide for the prevention of Disfigurement by Objectionable or Unauthorised Advertisement of Places open to public view and for the prohibition of Printing, Publishing and Display of Obscene Posters relating to cinemas and for matters connected therewith or incidental thereto. The term "advertisement" has been defined under Section 2 (a) of the Act No.28 of 1997 in the following manner:
"2 (a) "advertisement" includes any notice, circular, hand-bill, label, wrapper or other document and also includes any visible representation made by means of any light, sound, smoke or gas;
5. Sections 3 and 4 of the Act No.28 of 1997, which are relevant for the present petition, are reproduced hereunder:
"3. Penalty for disfigurement by objectionable advertisements -
Whoever affixes to, or inscribes or exhibits on any place open to public view any objectionable advertisement, shall be punished with imprisonment of the either description for a term which may extend to one year or with fine which shall not be less than two thousand rupees but which may extend to five thousand rupees or with both.4
4. Penalty for unauthorised disfigurement by advertisements -
Whoever affixes to, or inscribes or exhibits on any place open to public view any advertisement without the written consent of the owner or occupier or person in management of the property in which such place is situated shall be punished with imprisonment of either description for a term which may extend to three months or with fine which shall not be less than one thousand rupees but which may extend to two thousand rupees, or with both."
6. A plain reading of introduction of the Act No.28 of 1997 together with definition of advertisement as provided under Section 2
(a) and the provisions contained in Sections 3 and 4 quoted above, would manifest that what is prevented and treated to be an offence under the Act No.28 of 1997 is the disfigurement by objectionable or unauthorised advertisements of places open to public view and display of obscene posters relating to Cinemas. Affixing election poster is not an advertisement within the meaning of advertisement under Section 2 (a) of the Act No.28 of 1997 nor it amounts to any obscene poster or objectionable advertisement. Affixing of poster in violation of model code of conduct may attract offence under the Representation of the People Act, 1950. But, in this Court's considered view, it may not be offence under Section 3 and 4 of the Act No.28 of 1997. 5
7. In addition to the above, this Court noticed provisions contained in Section 16 of the Act No.28 of 1997, which reads as under:
"16. Cognizance of offences - No court shall take cognizance of any offence punishable under this Act except on a complaint filed, in the twin cities of Hyderabad and Secunderabad, Visakhapatnam and Vijayawada by the Commissioner of Police or by any Police Officer not below the rank of an Inspector of Police authorised by him in this behalf and elsewhere by the District Collector or any Officer not below the rank of a Mandal Revenue Officer authorised by him in this behalf.
8. It is settled law that the expression 'complaint' cannot be equated to mere information or accusation. Information submitted to the police and consequent charge sheet is not the manner of prosecution contemplated under Section 16 of the Act No.28 of 1997. For this, I may profitably refer to the judgment of the Hon'ble Supreme Court in "Bholanath Amritlal Purohit Vs. State of Gujarat"
reported in AIR 1971 Supreme Court 194. In the said decision, referring to similar provision contained in Section 72 of the Post Office Act, 1898, which provided that no Court shall take cognizance of an offence punishable under any of the provisions of the Act, unless upon complaint made by order of, or under authority from, the Director General or a Post Master General, the Hon'ble Supreme Court considered the question as to whether there was proper complaint in the case and held as under:6
"8. The question for consideration is whether there is such a "complaint" in this case? The expression "complaint" is not defined in the Act but the "complaint" contemplated under Section 55 is one that initiates a prosecution on the basis of which the accused if found guilty is punishable with imprisonment for a term which may extend to two years and also with a fine. That being so the expression "complaint"
in Section 72 cannot be equated to mere information or accusation. The context in which that expression is used in Section 72 indicates that it is a formal document indicting an officer of the postal department for a criminal offence. The purpose behind Section 72 is that officials of the postal department should not be harassed with frivolous prosecutions and that before any of the prosecutions contemplated by Section 72 is launched, the authorities mentioned in that Section should have examined the appropriateness of launching a prosecution and either file a complaint themselves or authorise the filing of such a complaint. Such a requirement will not be satisfied if the concerned authorities merely ask the police to investigate into the case and take appropriate action. An information laid before the police or even a sanction granted for a prosecution by the police would not meet the requirements of Sec.72. If the legislature contemplated that a mere information to the police by the appropriate authority is sufficient then there was no need to enact Section 72. Further if all that was required was to obtain the sanction of the concerned authority then the legislature would have enacted a provision similar to Section 197 of the Criminal P.C. The fact that the legislature did not choose to adopt either of the two courses mentioned above is a clear indication of the fact that the mandate of Section 72 is that there should be a formal 7 complaint as contemplated by Section 4 (1) (h) of the Criminal Procedure Code which says :
"'Complaint" means the allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person whether known or unknown, has committed an offence, but it does not include the report of a police officer".
9. If we understand the word "complaint" in Section 72 of the Act as defined under Section 4 (1) (h) of the Criminal P.C., as we think we should, then there was admittedly no "complaint" against the appellant which means that the learned Magistrate was incompetent to take cognizance of the case. From that it follows that the trial of the case was an invalid one and that the appellant was convicted without authority of law."
9. It is, thus, clear that a Magistrate is entitled to take cognizance of the offence punishable under the Act No.28 of 1997, if any such offence is made out, when a complaint is filed by the competent police officer in the twin cities of Hyderabad and Secunderabad, Visakhapatnam and Vijayawada and elsewhere by the District Collector or any Officer not below the rank of a Mandal Revenue Officer authorised by him in this behalf. In the case at hand, the Revenue Divisional Officer has moved information to the concerned police. However, he has not filed any complaint before the Jurisdictional Magistrate. Thus, the Magistrate cannot take cognizance of the matter pursuant to the report filed by the concerned police under Section 173 of Cr.P.C. as there is a difference between the report under Section 8 173 or Cr.P.C. and complaint by competent officer as prescribed in Section 16 of the Act No.28 of 1997.
10. For all the above stated reasons, the petition succeeds.
11. Accordingly, the criminal petition is allowed and the proceedings in C.C.No.360 of 2011 on the file of the Court of the IV Additional District Munsif Magistrate, Chittoor Town, Chittoor District are hereby quashed. All pending miscellaneous applications shall stand closed.
PRASHANT KUMAR MISHRA, CJ Ksp