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Madhya Pradesh High Court

Dr.Gautam Kalloo vs The State Of Madhya Pradesh on 10 November, 2009

                       2010 CRI. L. J. 1864
              Reported in
              "Gautam Kalloo v. State of M. P."


     HIGH COURT OF MADHYA PRADESH : JABALPUR

                                         M.Cr.C. No.11722/2008

      (1)    Dr. Gautam Kalloo, son of Shri S.M. Singh,
             aged about 65 years, Vice Chancellor,
             Jawahar Lal Nehru, Krishi Vishwavidyalaya,
             P.S. Adhartal Distt. Jabalpur.
      (2)    Dr. P.K. Mishra, aged about 52 years,
             son of late Shri B.R. Mishra,
             Registrar, Krishi Vishwavidyalaya,
             P.S. Adhartal Distt. Jabalpur
                                                 ... Petitioners
                                 vs.
       State of M.P. through Station House Officer,
       P.S. Adhartal, Distt. Jabalpur
                                                      ... Respondent
------------------------------------------------------------------------
       Shri P.N. Dubey, Advocate for the petitioners.
       Smt. Chanchal Sharma, Govt. Adv. for respondent-State.
------------------------------------------------------------------------
                             O R D E R

(10.11.2009) This is a petition, under Section 482 of the Code of Criminal Procedure (for short 'the Code'), for quashing the investigation into Crime No.686/2008 registered at Police Station Adhartal, Distt. Jabalpur in respect of the offence punishable under Section 188 of the IPC.

2. The FIR leading to registration of the case is, in essence, based on the report (Annexure P-3) submitted by Mr. Pravesh Sharma, Principal Secretary, Farmer Welfare and Agriculture Development, Madhya Pradesh, Bhopal, after a preliminary inquiry into the complaint (Annexure P-2) made against the petitioners and Gopal Bhargawa, the then Minister for Agriculture, for violation of the Model Code of Conduct (for brevity 'the Model Code') by increasing the number of seats available for admission to 2-year Diploma Course on :: 2 ::

Horticulture at Horticulture Vocational Education Institute in Ranguan, Garhakota Distt. Sagar from 40 to 50.

3. According to the petitioners, the investigation is an abuse of the process of the law for the following reasons -

(i) There is no violation of the Model Code at all.

(ii) Cognizance of the offence can not be taken by any Court of law firstly, for want of complaint of a competent authority and secondly, due to expiry of the prescribed period of limitation.

(iii) Even if the contents of the FIR are taken at their face value, no offence under Section 188 of the IPC would be made out.

While opposing the prayer for quashing the investigation, learned Govt. Advocate has pointed out that the petitioners are apparently guilty of non-compliance with the order issued by Election Commission of India in the form of the corresponding guideline laid down in the Model Code. In response, learned counsel for the petitioners has submitted that the proposed investigation is, in fact, an example of misuse of his official position by Mr. Pravesh Sharma at the instance of one Dr. H.B.S. Bhadoriya, Associate Professor, who is not inclined to resume his teaching duties at Veterinary College, Jabalpur and had exerted undue influence on the petitioners to allow him to continue as Deputy Secretary of the Agricultural Department at Bhopal. However, it would not be desirable to enter into the factual aspect of the matter.

4. Adverting to the legal aspects involved, it may be observed that the Model Code only lays down how the political :: 3 ::

parties, contesting candidates and party in power should conduct themselves during the process of elections. It contains guidelines for their general conduct, electioneering, holding meetings and processions, poll day activities and functioning of the party in power etc. Accordingly, any violation of the Model Code could only give rise to an election offence.

5. 5. Admittedly, the number of seats available for admission were increased only after the election to the State Legislative Assembly was announced. However, such a declaration would not fall within the ambit of sub-clause (vi) of Clause VII of the Model Code issued by Election Commission of India. The report of inquiry conducted by Dharmendra Nath, IAS (Retd.) under the orders of the Chancellor of the University also contains reference to the reply of petitioner no.1 that the decision to add seats was taken by the Board. In this view of the matter, none of the petitioners could be treated as violator of the Model Code.

6. Further, as explained by a Division Bench of Allahabad High Court in Ram Manohar Lohia v. State 1968 Alla 100

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"Section 188 does not make punishable any act as such but only when it is done in disobedience to an order duly promulgated by a public servant lawfully empowered to do so. In the absence of such an order the act would remain altogether unaffected by the provisions of the section and it is the order prohibiting the act that has the effect of attaching to it the penalty of the section".

7. This apart, by virtue of the provisions of Section 195(1)(a)(i) of the Code, cognizance of the offence in question can be taken only on the complaint in writing of the Secretary of the Election Commission of India or of some other public :: 4 ::

servant to whom he is administratively subordinate (See. State of U.P. v. Mata Bhikh (1994) 4 SCC 95) and 'complaint' as defined under Section 2(d) of the Code does not include a police report.

8. The inquiry report, referred to above, also clearly reflects that the actions against the petitioners were initiated only after the University had transferred Dr. H.B.S. Bhadoria, ex-officio Deputy Secretary back to his academic post in Veterinary College, Jabalpur but, while dealing with the question of quashing of the FIR and consequent investigation under the inherent powers, it would not be desirable to delve further into the merits of the allegations made by the petitioners against Dr. H.B.S. Bhadoria or Mr. Pravesh Sharma.

9. For these reasons, the case against the petitioners falls within category nos.(6) and (7) of the cases, as summarized by the Apex Court in State of Haryana v. Bhajan Lal AIR 1992 SC 604, attracting interference under inherent powers.

10. In the result, the petition stands allowed. The FIR and the consequent investigation are hereby quashed. However, nothing contained herein shall preclude the Election Commission of India from initiating action against the petitioners in accordance with law.

Petition allowed.

(R.C. MISHRA) JUDGE 10.11.2009