Patna High Court
Dharmesh Prasad Verma vs The State Of Bihar on 10 May, 2016
Author: Ashwani Kumar Singh
Bench: Ashwani Kumar Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.41702 of 2015
Arising Out of PS.Case No. -73 Year- 2014 Thana -JOGAPATTI District- WEST CHAMPARAN
(BETTIAH)
===========================================================
Dharmesh Prasad Verma, son of Late Amresh Prasad Verma, resident of Village
and P.O.- D.K. Shikarpur, P.S.- Sahodara, District-West Champaran.
.... .... Petitioner
Versus
The State of Bihar .... .... Opposite Party
===========================================================
Appearance :
For the Petitioner/s : Ms. Surya Nilambari, Advocate
For the Opposite Party/s : Dr. Mayanand Jha, APP
===========================================================
CORAM: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH
ORAL JUDGMENT
Date: 10-05-2016
The present application under Section 482 of the Code
of Criminal Procedure (For short „CrPC‟) has been preferred for
quashing of the order dated 14th July, 2015 passed by the learned
Sub Divisional Judicial Magistrate, West Champaran, Bettiah in
connection with Yogapatti (Nabalpur) P.S. Case No. 73 of 2014
dated 03.04.2014 by which the learned Magistrate has summoned
the petitioner and four others after taking cognizance of the offences
punishable under Sections 171-G, 171-H and 188 of the Indian
Penal Code (For short „IPC‟) and Section 127 of the Representation
2 Patna High Court Cr.Misc. No.41702 of 2015 dt.10-05-2016
2 / 19
of People Act, 1951 (For short „RP Act, 1951‟).
2. The first information report (For short „FIR‟) of
Yogapatti (Nabalpur) P.S. Case No. 73 of 2014 was registered on
the report by Hira Kumari, Block Development Officer, Yogapatti,
who was also appointed Magistrate of the flying squads team during
the general election to the Lok Sabha 2014. As per the prosecution
story, on 1st April, 2014, whilst the informant was patrolling the
area within her jurisdiction to ensure compliance with the Model
Code of Conduct and maintenance of law and order, she saw a car
of which registration number was BR-01BF-4533 bearing the flag
of Aam Admi Party, at the Piparia Chowk. In the car, the petitioner
and four others were seated. The informant sought the
license/permit in connection with car. However, no such document
was produced. Instead, the informant was told that the permit for
plying the car has duly been issued and the same would be duly
provided later on. On 3rd April, 2014, considering that neither the
permit/license nor the car itself was produced till 2:30 p.m., the FIR
was registered for violation of the Model Code of Conduct under
Sections 171-G, 171-H and 188 of the IPC and 127 of the RP Act,
1951.
3. On the basis of the aforesaid allegations made in
the FIR, investigation was taken up and after completion of
3 Patna High Court Cr.Misc. No.41702 of 2015 dt.10-05-2016
3 / 19
investigation, Charge Sheet No. 31/14 dated 28.04.2014 was
submitted in the court of Sub Divisional Judicial Magistrate, West
Champaran, Bettiah against the petitioner and four others for the
offences under which the FIR was registered.
4. After receiving the police report submitted under
Section 173(2) of the CrPC, the learned Sub Divisional Judicial
Magistrate took cognizance of the offences under which the FIR
was registered and the charge sheet was submitted vide impugned
order dated 14th July, 2015 against the petitioner and four others and
summoned them to face trial.
5. Challenging the aforesaid order dated 14th July,
2015, Ms. Surya Nilambari, learned counsel appearing for the
petititioner has submitted that the petitioner was a candidate
contesting on behalf of the Aam Aadmi Party in the General
Elections, held in 2014, to the Lol Sabha from Valmikinagar
constituency. He had previously successfully contested the elections
to the Bihar Legislative Assembly in 1980 and also served as a
member of the 9th Lok Sabha. She has submitted that the
Valmikinagar constituency comprised three Sub-divisions, namely,
Bagaha, Narkatiyaganj and Bettiah and Yogapatti block falls within
the Bettiah Sub-division. On 30th March, 2014, the petitioner was
permitted to use his car BR-01-BF-4533 bearing the symbols of his
4 Patna High Court Cr.Misc. No.41702 of 2015 dt.10-05-2016
4 / 19
political party, its flag, banner and the necessary paraphernalia-
mike, for canvassing, by the Sub Divisional Officer,
Narkatiayaganj. On 1st April, 2014, the petitioner applied for a
similar permission to the Sub Divisional Officer, Bettiah, which
was accorded by the Sub Divisional Officer, Bettiah on 2nd April,
2014.
6. Advancing her argument, learned counsel for the
petitioner has submitted that a reading of the impugned order dated
14th July, 2015 passed by the learned Sub Divisional Magistrate
taking cognizance of the offences and summoning the petitioner and
others would clearly indicate that there was total lack of application
of judicial mind. She has submitted that even if the allegations
made against the petitioner are accepted in their entirety, none of
the ingredients of the alleged offences would be attracted in the
present case.
7. On the other hand, Dr. Mayanand Jha, learned
Additional Public Prosecutor appearing for the State has submitted
that the allegations made in the FIR would certainly attract the
ingredients of an offence punishable under Section 188 of the IPC
and in that view of the matter, the order taking cognizance cannot
be faulted with. He has further submitted that from perusal of the
FIR itself, it would be evident that the petitioner had violated the
5 Patna High Court Cr.Misc. No.41702 of 2015 dt.10-05-2016
5 / 19
Model Code of Conduct during the election to the Lok Sabha 2014,
which is a set of norms, which have been evolved with the
consensus of political parties, who have consented to abide by the
principles embodied in the said Code in its letter and spirit. He has
further submitted after announcement of election scheduled for the
Lok Sabha polls, the Model Code of Conduct came into operation
and under the Code, the candidates and political parties are required
to take permission/license from the local authorities before using
the vehicles, loud-speakers, etc. during their poll campaigning. He
has submitted that since the petitioner had failed to produced or
show license/permission from the local authorities in respect of his
vehicle, in question, which was being used during poll campaign.
He was rightly being prosecuted for the offences alleged.
8. Having heard learned counsel for the parties, I need
to first set out the relevant statutory provisions:-
IPC
"Section 171G. False statement in connection with
an election.--
Whoever with intent to affect the result of an
election makes or publishes any statement
purporting to be a statement of fact which is false
and which he either knows or believes to be false
or does not believe to be true, in relation to the
personal character or conduct of any candidate
6 Patna High Court Cr.Misc. No.41702 of 2015 dt.10-05-2016
6 / 19
shall be punished with fine.
Section 171H. Illegal payments in connection with
an election --
Whoever without the general or special authority
in writing of a candidate incurs or authorises
expenses on account of the holding of any public
meeting, or upon any advertisement, circular or
publication, or in any other way whatsoever for
the purpose of promoting or procuring the
election of such candidate, shall be punished with
fine which may extend to five hundred rupees:
Provided that if any person having
incurred any such expenses not exceeding the
amount of ten rupees without authority obtains
within ten days from the date on which such
expenses were incurred the approval in writing of
the candidate, he shall be deemed to have
incurred such expenses with the authority of the
candidate.
Section 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 to tender to cause
7 Patna High Court Cr.Misc. No.41702 of 2015 dt.10-05-2016
7 / 19
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.
Explanation -- It is not necessary that the
offender should intend to produce harm, or
contemplate his disobedience as likely to produce
harm. It is sufficient that he knows of the order
which he disobeys, and that his disobedience
produces, or is likely to produce, harm.
RP Act, 1951
Section 127. Disturbances at election meetings.-(1)
Any person who at a public meeting to which this
section applies acts, or incites others to act, in a
disorderly manner for the purpose of preventing
the transaction of the business for which the
meeting was called together, shall be punishable
with imprisonment for a term which may extend to
six months or with fine which may extend to two
thousand rupees, or with both.
8 Patna High Court Cr.Misc. No.41702 of 2015 dt.10-05-2016
8 / 19
(1-A) An offence punishable under sub-section (1)
shall be cognizable.
(2) This section applies to any public meeting of a
political character held in any constituency
between the date of the issue of a notification under
this Act calling upon the constituency to elect a
member or members and the date on which such
election is held.
(3) If any police officer reasonably suspects any
person of committing an offence under sub-section
(1), he may, if requested so to do by the chairman
of the meeting, require that person to declare to
him immediately his name and address and, if that
person refuses or fails so to declare his name and
address, or if the police officer reasonably suspects
him of giving a false name or address, the police
officer may arrest him without warrant."
9. Be it noted first that the offences prescribed under
Sections 171-G and 171-H of the IPC are non-cognizable offences.
10. Section 171-G IPC penalizes a person who
makes/publishes any statement, which he knows/believes to be
false, relating to the personal character or conduct of any candidate,
with intent to affect the results of an election. Apparently, there is
no such allegation that the accused persons including the petitioner
made any statement, which they knew to be false relating to the
personal character and conduct of any candidate with intent to affect
9 Patna High Court Cr.Misc. No.41702 of 2015 dt.10-05-2016
9 / 19
the result of an election. In that view of the matter, the ingredients
of the offence punishable under Section 171-G of the IPC are
clearly not attracted in the present case.
11. Similarly, section 171-H of the IPC penalizes a
person who incurs/authorizes any expenses in connection with the
purpose of promoting or procuring the election of any candidate,
without the general or special authority in writing of such candidate.
There is no such allegation in the present case and this Court is of
the opinion that none of the ingredients of the offence punishable
under Section 171-H of the IPC are attracted in the present case.
12. Further, Section 188 of the IPC penalizes
disobedience to an order duly promulgated by a public servant, its
prerequisite being:-
(a) Lawful order promulgated by a public servant
empowered to promulgate it;
(b) Knowledge of the order;
(c) Disobedience of the order; and
(d) Result that is likely to follow such disobedience
i.e. obstruction, annoyance, injury or risk of the same
to a person lawfully employed or danger to human
health, life or safety or riot affray.
13. Applying the perquisites noted above for
constituting an offence under Section 188 of the IPC, I find that
10 Patna High Court Cr.Misc. No.41702 of 2015 dt.10-05-2016
10 / 19
there is neither any specific allegation nor any finding to the effect
that the accused persons including the petitioner whilst at Piparhia
chowk, made statements or shouted slogans or otherwise indulged
in canvassing/campaigning to promote the candidature of the
petitioner or caused annoyance, disturbance, injury and so on and so
forth to any person/property. Nor is there any mention or finding
that the petitioner had violated any order duly promulgated order
issued by the Sub Divisional Officers of Bettiah and Narkatiaganj.
14. Further, in order to attract an offence under
Section 188 of the IPC, the disobedience must either cause or it
must have tendency to cause obstruction, annoyance or injury as
stated in this section. There has to be a factual proof of annoyance.
Mere mental annoyance of the concerned authorities is not intended
to be included in the section. In the present case, there is no such
allegation that non-production of the license/permit in connection
with car in question had any tendency to cause obstruction,
annoyance or injury or risk of obstruction, annoyance or injury to
any person lawfully employed.
15. At the stage, it is also pertinent to note here that
Section 195(1) of the CrPC bars the Court from taking cognizance
of the offence punishable under Section 188 of the IPC or abetment
or criminal conspiracy to commit such offence, unless there is a
11 Patna High Court Cr.Misc. No.41702 of 2015 dt.10-05-2016
11 / 19
written complaint in writing by the public servant concerned or
some other public servant to whom he is administratively sub-
ordinate for contempt of his lawful order.
16. Section 195(1) of the CrPC reads as under:-
"195(1) No Court shall take cognizance-
(a)(i) of any offence punishable under Sections
172 to 188 (both inclusive) of the Indian Penal
Code (45 of 1860), or
(ii) of any abetment of, or attempt to commit,
such offence, or
(iii) of any criminal conspiracy to commit such
offence, except on the complaint in writing of the
public servant concerned or of some other public
servant to whom he is administratively
subordinate;
(b) (i) of any offence punishable under any of the
following sections of the Indian Penal Code (45 of
1860), namely, sections 193 to 196 (both
inclusive), 199, 200, 205 to 211 (both inclusive)
and 228, when such offence is alleged to have
been committed in, or in relation to, any
proceeding in any Court, or
(ii) of any offence described in section 463, or
punishable under section 471, section 475 or
section 476, of the said Code, when such offence is
alleged to have been committed in respect of a
document produced or given in evidence in a
proceeding in any Court, or
12 Patna High Court Cr.Misc. No.41702 of 2015 dt.10-05-2016
12 / 19
(iii) of any criminal conspiracy to commit, or
attempt to commit, or the abetment of, any
offence specified in sub-clause (i) or sub-clause
(ii), except on the complaint in writing of that
Court or by such officer of the Court as that
Court may authorize in writing in this behalf, or
of some other Court to which that Court is
subordinate."
17. The provision prescribed under Section 195 of the
CrPC has been carved out as an exception to the general rule
contained under Section 190 of the CrPC that any person can set the
law into 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.
The legislative intention appears to be clear from the language of
Section 195 of the CrPC which clearly prescribes that where an
offence is committed under Section 188 IPC, it would be obligatory
that the public servant before whom such an offence is committed,
should file a complaint before the jurisdictional Magistrate either
orally or in writing. Hence, it would not be within the domain of the
police to register a case for an offence alleged under Section 188 of
the IPC and investigate the same, as registration of an FIR for an
offence under Section 188 IPC is not permitted by the CrPC.
13 Patna High Court Cr.Misc. No.41702 of 2015 dt.10-05-2016
13 / 19
18. In Jiwan Kumar vs. State of Punjab & Ors.
[2008 Cr.L.J. 3576], a Division Bench of the Punjab and Haryana
High Court has held that proceedings for offence under Section 188
IPC an be started on the basis of complaint filed by the public
servant concerned and not on the basis of FIR culminating in filing
of the charge-sheet.
19. I find myself in complete agreement with the
ratio laid down by the Division Bench of the Punjab and Haryana
High Court in the aforesaid decision in the matter of Jiwan Kumar
(supra).
20. In view of the discussions made hereinabove and
the decision of the Division Bench of the Punjab and Haryana High
Court in Jiwan Kumar (supra), I am of the considered opinion that
the order taking cognizance under Section 188 of the IPC passed by
the learned Sub Divisional Judicial Magistrate on the basis of a
police report submitted under Section 173(2) of the CrPC pursuant
to an FIR instituted under Section 154 of the CrPC is bad in the
eyes of law.
21. The only other section under which cognizance
has been taken by the learned Sub Divisional Judicial Magistrate is
Section 127 of the RP Act, 1951. Section 127 of the RP Act, 1951
penalizes a person who causes disturbance at a public meeting, of a
14 Patna High Court Cr.Misc. No.41702 of 2015 dt.10-05-2016
14 / 19
political character, for the purpose of preventing the transaction of
business for which the meeting was called. Apparently, no such
allegation has been made in the FIR and in that view of the matter, I
am of the considered opinion that the ingredients of the offence
punishable under Section 127 of the RP Act, 1951 are also not
attracted in the present case.
22. Thus, the brief discussion of the relevant
provisions makes it explicit that summoning the petitioner and the
other accused persons for committing the aforesaid offences is
patently illegal and unjust. Even with a most liberal understanding
of these provisions, the offences alleged in the FIR cannot be
attributed to the petitioner or to any other accused persons named in
the FIR.
23. In the result, the impugned order dated 14th July,
2015 passed by the learned Sub Divisional Judicial Magistrate,
West Champaran, Bettiah in connection with Yogapatti (Nabalpur)
P.S. Case No. 73 of 2014 dated 03.04.2014 is set aside and quashed.
24. Before parting with this judgment, I must observe
that lately, I have witnessed a rising trend among the Judicial
Officers to pass orders taking cognizance of offences and
summoning accused persons by merely filling in blanks in a format
pre-prepared for the purpose, I find this manner of passing orders
15 Patna High Court Cr.Misc. No.41702 of 2015 dt.10-05-2016
15 / 19
somewhat disturbing more so in cases involving cognizance of the
offence and summoning of the accused.
25. In the present case, the proforma order passed by
the learned Sub Divisional Judicial Magistrate, Gaya dated 14th
July, 2015 is as under:-
"U;k;ky;]
vuqe.My U;kf;d n.Mkf/kdkjh]
if"pe pEikj.k] csfr;kA
TR No. 1973/2015
;ksxkiV~Vh ¼uoyiqj½ Fkkuk dk.M la0 73@2014 (G.R. 1165/2014
vfHkys[k laKku ds fcUnq ij lquokbZ gsrq izLrqr gqvkA
lquk rFkk vfHkys[k dk voyksdu fd;kA
14-7-2015izLrqr okn Hkk0 n0 fo0 dh /kkjk 171 ¼G½¼H½ @188 ,oa 127] R.P.Act 1951 ds varxZr izkFkfefd ds uketn dqy ik¡p vfHk;qDrksa ds fo:) ntZ gSA vuqla/kkuksijkUr vkjksi i= dk.M nSfud ds lkFk Hkk0 n0 fo0 dh /kkjk 171 ¼G½¼H½ 188 ,oa 127] R.P.Act 1951, ds varxZr vkjksi i= ds dkWye &11 esa ukfer vfHkq;Drksa ds fo:) lefiZr fd;k x;kA dk.M nSfudh esa vkjksi i= ds dkWye &11 esa vafdr lHkh ¼1½ /kesZ"k izlkn oekZ ¼2½ misUnz ukFk oekZ ¼3½ eukst lkg ¼4½ f"ko ikloku ¼5½ jke izdk"k yky vfHk;qDrksa ds fo:) Hkk0 n0 fo0 dh /kkjk 171 ¼G½¼H½ 188 ,oa 127 R.P.Act 1951, ds varxZr izFke n`'V;k ekeyk gsrq i;kZIr lkexzh gSA rnuq:i laKku fy;k tkrk gS rFkk vfHkys[k fof/kor~ fu'iknu gsrq futh fopkj.k iath esa ntZ djsa ,oa dk;kZy; vfHk;qDrksa ds fo:) lEeu fuxZr djsaA fnukad 21-9-2015 okLrs mifLFkfrA g0 vLi'V vuqe.My U;k0 n.Mk0 csfr;kA"
26. Be it noted that except the underlined words in the preceding paragraph, rest is in a format pre-prepared for the 16 Patna High Court Cr.Misc. No.41702 of 2015 dt.10-05-2016 16 / 19 purpose.
27. The need for proper application of mind by the courts at the stage of summoning has been highlighted by the Supreme Court in Pepsi Foods Ltd. and Another Vs. Special Judicial Magistrate and Others, reported in (1998) 5 SCC 749, in para 28 as follows:-
"28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinize the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers 17 Patna High Court Cr.Misc. No.41702 of 2015 dt.10-05-2016 17 / 19 to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused."
28. It would be trite to remark that taking of cognizance and summoning of accused in a criminal case has serious consequence on the liberty of an accused, as pursuant to such order, he is made to take bail and face trial for a criminal offence. An order of cognizance passed in a standardized format by filling up the only perfunctory details buttress an ex facie lack of application of mind in the order of taking cognizance and summoning an accused.
29. In Fakhruddin Ahmad Vs. State of Uttaranchal and Another, reported in (2008) 17 SCC 157, once again, in paragraph 17, the Supreme Court has held as follows:-
"17. Nevertheless, it is well settled that before a Magistrate can be said to have taken cognizance of an offence, it is imperative that he must have taken notice of the accusations and applied his mind to the allegations made in the complaint or in the police report or the information received from a source other than a police report, as the case may be, and the material filed therewith. It needs little emphasis that it is only when the Magistrate applies his mind and is satisfied that 18 Patna High Court Cr.Misc. No.41702 of 2015 dt.10-05-2016 18 / 19 the allegations, if proved, would constitute an offence and decides to initiate proceedings against the alleged offender, that it can be positively stated that he has taken cognizance of the offence. Cognizance is in regard to the offence and not the offender."
30. Keeping in mind the discussions made, hereinabove and the ratio laid down by the Supreme Court in Pepsi Foods Ltd. and Another (supra) and Fakhruddin Ahmad (supra), this Court deems it fit and proper to direct that in future Judicial Officers shall refrain from passing orders in formats prepared in advance containing blanks to be filled in with formal details, as has been done in the present case. The Judicial Officers are further directed to pass orders of taking cognizance and summoning accused in a criminal case only after applying their judicial mind to the facts of the case and the law applicable thereto.
31. Registry is directed to send a copy of this order to all the District Judges. The District Judges are directed to circulate a copy of the order amongst the Judicial Officers in their respective judgeships to make them aware about the direction given in this order. A copy of this order be also sent to the Bihar Judicial Academy to sensitize the Judicial Officers about the concern of this Court.
19 Patna High Court Cr.Misc. No.41702 of 2015 dt.10-05-2016 19 / 19
32. With these observations and directions, the application stands allowed.
(Ashwani Kumar Singh, J.) Sanjeet/-
AFR/NAFR AFR CAV DATE Uploading Date 18.05.2016 Transmission 18.05.2016 Date