Madhya Pradesh High Court
Vikas Pandey vs The State Of Madhya Pradesh on 5 September, 2019
Author: Rajendra Kumar Srivastava
Bench: Rajendra Kumar Srivastava
THE HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
Hon'ble Shri Justice Rajendra Kumar Srivastava
M.Cr.C. No. 25296/2019
Vikas Pandey
Vs
State of M.P. and others
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Mr. Quazi Fakhruddin, learned counsel for the petitioner.
Mr. Sharad Singh Baghel, learned P.L. for the respondents/State.
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ORDER
(05.09.2019) Petitioner has filed this miscellaneous criminal petition under Section 482 of the Cr.P.C. to quash the entire criminal proceedings/FIR arising out of Crime No. 117/2019 registered at Police Station Singhpur, District Satna MP.
2. Case of prosecution story in short is that one Amit Garg wrote a letter No. 1266918241 on 12.05.2019 to the Election Commission that petitioner/accused has uploaded the confidential information about election proceeding on facebook, whereby the petitioner/accused has conferred that he along with his entire family and his neighbor have voted to particular party in general Assembly Election of 2019. Then, Nodal Officer, District Contact Center District Satna wrote a letter to District Collector and District Election Officer that there a breach of conduct of election procedure. Therefore, further proceedings may be drawn. Then Collector and District Election Officer, District Satna wrote a letter to Superintendent of Police. 2 M.Cr.C. No.25296/2019 Thereafter criminal case was registered and matter was inquired. Thereafter, incharge of police station registered a FIR under Section 188 of IPC and Section 126 -A, 130 of Representation of the People Act, 1950 and 1989 against the petitioner/accused. Thereafter investigation has been completed.
3. Learned counsel for the petitioner/accused submits that police station Singhpur has acted instantly on the malicious, deliberate and false registered complaint. Petitioner/accused did not caste any vote in the pooling both No. 10 on 06.05.2019 at Shivrajpur. Petitioner/accused has no facebook account in the of "Vikas Pandey Advocate Satna" and prima facie it appears to be false/bogus account. Petitioner/accused does not belongs to any of the political parties. Without considering the aforesaid aspect, police has acted contrary and unlawfully registered the aforesaid crime. Registration of Crime No. 117/2019 is illegal and deserves to be quashed. No prima facie case is made out against the petitioner/accused. Registration of crime by the police for the offence under Sections 188 of IPC read with Section 126-A and 130 of the Representation of People Act, 1951 is itself illegal. The offence under Section 126-A of Representation of People Act, is a non- cognizable offence, therefore police cannot investigate into the matter. No FIR can be lodged for the offences punishable under Section 188 of IPC as it can only be done by way of following the due procedure of law as contemplated under Section 195 of Cr.P.C. Therefore, on this count alone, the instant petition deserves to be succeed. No prima facie case is made out under Section 130 of Representation of People Act, 1951 as essential ingredients to constitute offence are completely missing in the 3 M.Cr.C. No.25296/2019 present case. So initiation of criminal proceedings by the police particularly without following due procedure of law are itself amounts to abuse of the process of law. Therefore, entire proceedings deserves to be quashed. In support of his contention he has relied the judgment the Hon'ble Apex Court in the case of Balbir Vs. State of Haryana and another reported in (2000) 1 SCC 285 and the judgments of High Court in the case of Omprakash Vs. State of MP passed in M.Cr.C. No. 1021/2016 and State of MP and another Vs. Jyotiraditya Scindia passed in WP No. 7984/2011, Ashok Agrawa Vs. State of MP passed in M.Cr.C. No. 5306/2014, Preetam Lodhi Vs. State of MP passed in M.Cr.C. No. 794/2015 and Prashant Chauhan Vs. State of MP passed in M.Cr.C. No. 312/2013.
4. Learned counsel for the respondent/State submits that there is prima facie case against the petitioner/accused. As far as Section 130 of the Representation of People Act is concerned, same is cognizable offence and prima facie case is made out against the petitioner. Therefore, it is not an appropriate case to exercise the inherent power of this Court under Section 482 of the Cr.P.C. to quash the proceedings. Matter will be investigate by the trial Court and petitioner/accused is free to raise all the objections before the trial Court at appropriate stage. Therefore, he prays for dismissal this petition.
5. Heard both the parties and perused the case diary. Before embarking of the facts of the case it would be necessary to first read the relevant provision leveled against the present petitioner. Petitioner is facing proceeding of offences under Section 188 of IPC and 126-A, 130 of Representation of People Act. Provisions are quoted as under:- 4 M.Cr.C. No.25296/2019
"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.
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 electonic 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.
(2) For the purposes of sub-Section (1), the Election Commission shall, by a general order, notify the date and time having due regard to the following, namely:-
(a) in case of a general exlection, the period may commence from the beginning of the hours fixed for poll on the first day of poll and continue till half an hour after closing of the poll in all the States and Union territories;
(b) in case of a bye-election or a number of bye-
election held together, the period may commence from the beginning of the hours fixed for poll on and from the first day of poll and continue till half an hour after closing of the poll:-
Provided that in case of a number of bye-elections held together on different days, the period may commence from the beginning of the hours fixed for poll on the first day of poll and continue till half an hour after closing of the last poll.
(3) Any person who contravenes the provisions of this section shall be punishable with imprisonment for a term which may extend to two years or with fine or with both.
130. Prohibition of canvassing in or near polling stations.--
(1) No person shall, on the date or dates on which a poll is taken at any polling station, commit any of the following acts within the polling station or in any public or private place within a distance of [one hundred metres] of the polling station, namely:--
(a) canvassing for votes; or
(b) soliciting the vote of any elector; or 5 M.Cr.C. No.25296/2019
(c) persuading any elector not to vote for any particular candidate; or
(d) persuading any elector not to vote at the election; or
(e) exhibiting any notice or sign (other than an official notice) relating to the election. (2) Any person who contravenes the provisions of sub-section (1) shall be punishable with fine which may extend to two hundred and fifty rupees.
(3) An offence punishable under this section shall be cognizable.
6. As argued by the learned counsel for the petitioner that proceedings with regard to offence of Sectin 188 of IPC can only be initiated by way of following the due procedure as contempleted under Section 195 of Cr.P.C. thus provision of 195 of Cr.P.C. is also necessary to consider and mentioned herein:-
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 congnizance.
(a)(i) of any offence punishable under Section 172 to 188 (both inclusive) of the Indian Penal Code, or
(ii) *************
(iii) ************* except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate."
7. It is evident from the record, at the time of casting vote in the Parliamentary Election, 2019. The petitioner/accused took the photo of EVM along with VVPAT and these photos was uploaded in his facebook ID to motivate the person to cast vote. Then complaint was sent on which District Collector or Election Officer of District lodged a complaint to the Superintendent of Police. Then FIR was registered. It is evident that an offence under Section 130 of Representation of People Act is cognizable offence and police is competent to register the FIR for that offence. In view of the principle laid down in the case of Lalita Kumari Vs. State of UP and others reported in (2014) 2 SCC 1, the 6 M.Cr.C. No.25296/2019 Hon'ble Apex Court has held that registration of First Information Report is mandatory under Section 154 of the Code of Criminal Procedure , if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation. If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not.
8. Section 130(e) under the Representation of People Act prescribed, no person shall, on the date or dates on which a poll is taken at any polling station, no exhibiting any notice or sign (other than an official notice) relating to the election within the polling station or in any public or private place within a distance of one hundred metres. So in view of the circumstances of the case, it can not be said the proceeding is basless. So it is not a proper case in which inherent jurisdiction can be invoked under Section 482 of Cr.P.C. to set aside the proceeding. Petitioner/accused is free to raise all objections or arguments before the trial Court. Pronouncements relied by the petitioner's counsel is different set of facts and do not applicable in this case.
9. Accordingly, this petition is dismissed.
(Rajendra Kumar Srivastava) Judge L.R. Digitally signed by LALIT SINGH RANA Date: 2019.09.07 12:49:47 +05'30'