Madhya Pradesh High Court
Ashish Bhola vs The State Of Madhya Pradesh on 7 January, 2025
Author: Sanjeev S Kalgaonkar
Bench: Sanjeev S Kalgaonkar
NEUTRAL CITATION NO. 2025:MPHC-IND:291
1 MCRC-13822-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE SANJEEV S KALGAONKAR
MISC. CRIMINAL CASE No. 13822 of 2024
ASHISH BHOLA
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Harshwardhan Singh Rathore - Advocate for the petitioner.
Shri Madhusudan Yadav- GA for the State.
Ms. Chitralekha Hardia- Advocate for respondent no.2.
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Reserved on : 29/08/2024
Delivered on : 07/01/2025.
ORDER
1. This petition under section 482 of Cr.P.C is filed for quashing the FIR registered at Crime no. 673/2018 PS. Tukogunj, charge-sheet bearing no. 66/2019 and the Order dated 15/03/2019 passed in RCT no. 1111/2019 with regard to cognizance of the offence by learned Judicial Magistrate First Class, Indore.
2. As per the case of prosecution, Jitendra Singh Yadav, resident of M.G. Road, Indore submitted a written complaint through email to the Chief Electoral Officer of Madhya Pradesh, inter-alia alleging that despite prohibition during State Assemble Election, 2018, exit poll is conduced thorough mobile phone no. +914071317703. It is stated in the complaint that the Election Commission of India has issued notification with regard to State Assemble Election, 2018 and directed prohibition on conduct of exit polls till 7th December, 2018. Despite this Signature Not Verified Signed by: AMOL NIVRUTTIRAO MAHANAG Signing time: 08-01-2025 10:51:58 NEUTRAL CITATION NO. 2025:MPHC-IND:291 2 MCRC-13822-2024 prohibition, he had received a call on 5th December, 2018 on his mobile phone asking certain questions with regard to voting in the State Assembly Election through prerecorded voice queries. The Dy. Nodal Officer forwarded the complaint to District Election Office, Indore, who forwarded the same for investigation to Superintendent of Police, Crime Branch, District Indore. Sub- Inspector, Crime Branch, Ms. Shradha Yadav conducted inquiry into the complaint. It was found that mobile sim no. +914071317703 was issued by service provider Vodafone Company to Tenla Solution Ltd, Hyderabad. A query was sent to Tenla Solution Ltd, Hyderabad through email. The concerned replied through email that the alleged sim number was issued to Ashish Bhola of ValueFirst Digital Media Pvt. Ltd, Gurugram (Hariyana) (hereinafter referred to "ValueFirst"). This inquiry report was forwarded to SHO, Police Station -
Tukoganj, Indore with the direction to register offence punishable under section 126-A of Representation of the People Act, 1951 (hereinafter referred to "R.P, Act, 1951) and section 188 of Indian Penal Code, 1860 ( hereinafter referred to "IPC"). Accordingly, Police Station- Tukoganj, Indore registered FIR at Crime no. 673/2018 for the offences. During the investigation, statement of the complainant was recorded. One CD containing alleged conversation was seized on production by Jitendra Singh Yadav and transcript of conversation was prepared. On completion of the investigation, final report was submitted on 11/03/2023.
3. The FIR, final report and the Order taking cognizance for the offence punishable under section 126-A of R.P. Act, 1951 and section 188 of IPC is assailed in present petition on following grounds:-
A. The petitioner is an employee of ValueFirst Digital Media Pvt. Ltd, a company incorporated under the Indian Companies Act, 1956. The Signature Not Verified Signed by: AMOL NIVRUTTIRAO MAHANAG Signing time: 08-01-2025 10:51:58 NEUTRAL CITATION NO. 2025:MPHC-IND:291 3 MCRC-13822-2024 ValueFirst provides communication platform and acts as an intermediary for the exchange of data between its clients and customers of the clients.
Findoc Investmart Pvt. Ltd (hereinafter referred to "Findoc") approached the ValueFirst in December, 2018 in order to avail intermediary communication platform services namely Outbound Dialer Services. The Findoc submitted voice message, which was to be broadcasted on Outbound Dialer Services of ValueFirst system. The Findoc also provided a list of recipients. The pre-recorded voice messages of Findoc allegedly constituted the commission of alleged offences. As per the contents of the charge-sheet, pre-recorded voice message was used for conducting exit poll in the form of questionaire. The petitioner and the Value First informed the police that the ValueFirst had acted as an intermediary for Findoc. The pre-recorded communication was conducted by Findoc. Further, there was no publication or dissemination of the result of exit poll alleged against the petitioner, intermediary company or the customers of intermediary company namely Findoc, therefore, no offence punishable under section 126-A of R.P. Act, 1951 is made out.
B. The cognizance under section 188 of IPC is bad in law in view of legal bar contained in section 195(1)(a) of Cr.P.C for the reason that no complaint in writing was submitted by the public servant concerned.
C. As alleged, voice messages were sent for and on behalf of the people inside that the petitioner or his company ValueFirst are not related to "people inside". Without verification of the role of petitioner, the FIR at Crime no. 673/2018 and the charge-sheet bearing no. 66/2019 were submitted with the Court, therefore, the FIR and the consequential proceedings deserve to be quashed.
4. Learned counsel for the petitioner, in addition to the grounds mentioned in the petition, contends that no offence as alleged is made out against the petitioner. There is no evidence connecting the petitioner with the alleged offence, except, an email given by Tenla Solutions Pvt. Ltd naming petitioner as contact person of the intermediary ValueFirst Company. No material, even statement under section 161 of Cr.P.C, is available to show that the petitioner was conducting an exit poll through recorded voice questionaire. Learned counsel further referring to the recommendations of Standing Committee on Personnel Public Grievances, Law and Justice and guidelines of Election Commission of Signature Not Verified Signed by: AMOL NIVRUTTIRAO MAHANAG Signing time: 08-01-2025 10:51:58 NEUTRAL CITATION NO. 2025:MPHC-IND:291 4 MCRC-13822-2024 India available on its website and the objects and reasons for incorporating section 126-A of R.P. Act, 1951, contends that there is no restrictions on mere conduct of exit poll during enforcement of model code of conduct.
5. Per-contra, learned counsel for the State contends that the prosecution was initiated on the information given by Jitendra Singh Yadav to the Chief Electoral Officer and the matter was investigated at the instance of Nodel Officer, District Election Officer, Indore, therefore, the interdict contained in section 195(1)(a) of Cr.PC would not apply as bar to taking cognizance by learned Judicial Magistrate. The offence alleged is prima-facie made out, therefore, final report was submitted before learned Judicial Magistrate and learned Judicial Magistrate has not committed any error in taking cognizance of the alleged offence.
6. Learned counsel appearing on behalf of the Election Commission of India, referred to the notification with regard to enforcement of model code of conduct, contends that exit poll was conducted during enforcement of model code of conduct vide notification dated 06/10/2018 issued by the Election Commission of India, therefore, the offence under section 126-A of R.P. Act, 1951 is clearly made out against the petitioner. Thus, this petition, being meritless, deserves to be dismissed.
7. Heard rival contentions and perused the record.
8. Section 126-A of the Representation of the People Act, 1951 provides as under :
126A. Restriction on publication and dissemination of result of exit polls, etc-
(1) No person shall conduct any exit poll and publish or publicise by means of the print or electronic media or disseminate in any other manner, whatsoever, the result of any exit poll during such period, as may be notified by the Election Commission in this regard.Signature Not Verified Signed by: AMOL NIVRUTTIRAO MAHANAG Signing time: 08-01-2025 10:51:58
NEUTRAL CITATION NO. 2025:MPHC-IND:291 5 MCRC-13822-2024
9. Thus, conduct of exit poll followed by publication, dissemination or publicising it's result during the period of notification is made punishable with imprisonment for a term, which may extend to two years and / or the fine. As per the case of prosecution, the complainant merely alleged that he has received prerecorded calls from "people inside" asking certain queries regarding voting to political parties in the Madhya Pradesh State Assembly Election, 2018. There is no allegation that based on these prerecorded queries, the result of exit poll was published, publicised or disseminated in any manner. The investigation did not conclude that the prerecorded queries on behalf of "people inside" was published or publicised or disseminated during the period of notification by Election Commission.
10. Section 195 (1)(a) (1) of Code of Criminal Procedure, 1973 provides that "no Court shall take cognizance of any offence punishable under sction 172 to 188 (both inclusive) of the IPC, except on the complaint in writing of the public servant concerned or of some other public servant to whom, he is administratively subordinate".
11. Thus, section 195(1)(a)(1) of Cr.P.C bars the Court from taking cognizance of any offence punishable under section 188 of IPC, unless there is a written complaint by public servant concerned for contempt / violation of his lawful orders. The charge-sheet of Crime no. 673 of 2018 reveals that Jitendra Singh Yadav had submitted a written complaint, which was forwarded for inquiry to Sub-Inspector Shradha Yadav and on the basis of such allegations and inquiry thereupon, the impugned FIR at Crime no. 673 of 2018 was registered under section 126-A of the Representation of People Act, 1951 and section 188 of IPC. No written complaint was filed by Election Officer or any authority of the Election Commission for violation of notification. Thus, interdict contained under Signature Not Verified Signed by: AMOL NIVRUTTIRAO MAHANAG Signing time: 08-01-2025 10:51:58 NEUTRAL CITATION NO. 2025:MPHC-IND:291 6 MCRC-13822-2024 section 195(1)(a)(1) of Cr.P.C would prohibit the cognizance for offence punishable under section 188 of IPC.
12. The impugned FIR and the consequent investigation alleges that prerecorded voice call was received by Jitendra Singh Yadav making certain queries with regard to voting to political parties in Madhya Pradesh State Election, 2018 on behalf of "people inside"
13. The final report and the documents collected during investigation merely revealed that mobile phone no. +914071317703 relates to Tenla Solution Ltd, Hyderabad. Tenla Solution Ltd, Hyderabad, through email replied that the aforesaid mobile phone was used by Ashish Bhola (petitioner). On the basis of this reply, the petitioner is implicated in the matter. The investigation does not reveal, how the petitioner is related to "people inside" , which made the queries, however, the petitioner attempted to clarify that he was working with ValueFirst Digital Media Pvt. Ltd, Gurugram, which is an intermediary providing broadcasting service on Outbound Dialer Services. Findoc submitted voice massage and the communication was conducted by Findoc. No investigation was conducted into this aspect of the matter, rather, the investigation was completed in haste and the final report was submitted without collecting proper evidence connecting the accused /petitioner with the prerecorded voice queries conducted on behalf of "people inside". Therefore, chances of conviction in the matter are bleak. The prosecution of petitioner on a hasty, half-baked investigation would be abuse of process of court which will entail waste of precious time of the Court.
Therefore, in view of the aforestated discussion, this Court is of the considered opinion that it is a fit case for invoking jurisdiction under section 482 of Cr.P.C for quashment of FIR and consequent prosecution of petitioner for the ends of Signature Not Verified Signed by: AMOL NIVRUTTIRAO MAHANAG Signing time: 08-01-2025 10:51:58 NEUTRAL CITATION NO. 2025:MPHC-IND:291 7 MCRC-13822-2024 justice.
14. Consequently, present petition filed under section 482 of Cr.P.C is allowed and it is directed that the FIR registered at Crime no. 673 of 2018 at Police Station- Tukogunj, charge-sheet bearing no. 66 of 2019, the Order dated 15/032019 passed in RCT no. 1111 of 2019 and consequential proceedings pending before the learned Judicial Magistrate First Class, Indore are hereby quashed.
15. Present petition stands disposed of accordingly. CC as per rules.
(SANJEEV S KALGAONKAR) JUDGE amol Signature Not Verified Signed by: AMOL NIVRUTTIRAO MAHANAG Signing time: 08-01-2025 10:51:58