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Public Meeting By Electoral Candidate After Implementation Of Model Code Of Conduct Is Unlawful Assembly Under IPC: Amitabh Choudhary Vs The State Of Jharkhand & Anr

Neeraj ,
  04 April 2022       Share Bookmark

Court :
High Court of Jharkhand
Brief :
The present criminal miscellaneous petition was filed under Section 482 of the Code of Criminal Procedure for quashing the entire proceedings in connection with the order passed by the Learned Judicial Magistrate, Ranchi whereby the Court took cognizance for the offence sunder Sections 143 and 188 of the Indian Penal Code and 126 of the Representation of People Act, 1951 against the petitioner.
Citation :
Criminal Misc. Petition no. 856/2019

Date of Judgement:
25thMarch 2022

Coram/Judge:
Hon'ble Mrs. Justice Anubha Rawat Choudhary

Parties to the Case:
Petitioner- Amitabh Choudhary
Opposite Party- The State of Jharkhand &Anr.

Brief

The present criminal miscellaneous petition was filed under Section 482 of the Code of Criminal Procedure for quashing the entire proceedings in connection with the order passed by the Learned Judicial Magistrate, Ranchi whereby the Court took cognizance for the offences under Sections 143 and 188 of the Indian Penal Code and 126 of the Representation of People Act, 1951 against the petitioner.

Legal Provisions

  • Section 482 of the Code of Criminal Procedure, 1973- lays down inherent powers of the High Court to prevent an abuse of the process of any court or to secure the ends of justice and therefore the High Court have jurisdiction to quash FIRs.
  • Section 195 of the Code of Criminal Procedure, 1973- deals with Prosecution for contempt of lawful authority of public servants
  • Section 143 of the Indian Penal Code,1860- which lays down punishment for members of unlawful assembly.
  • Section 188 of the Indian Penal Code, 1860- it lays down punishment for Disobedience to order duly promulgated by public servant.
  • Section 141 of the Indian Penal Code,1860- it lays down definition of unlawful Assembly under IPC.
  • Section 126 of the Representation of People Act, 1951- which prohibits public meetings during period of 48 hours ending with hour fixed for conclusion of poll and lays down punishment for the same.

Overview

  • Prosecution case was based on a written report dated 11.03.2014 lodged by an Informant. A representative of Jharkhand Vikas Morcha, a candidate contesting for the Ranchi Parliamentary Constituency, without obtaining any prior permission and in violation of the Model Code of Conduct, gathered people illegally for convening a political meeting. The same was also confirmed in the course of enquiry.
  • It was also alleged that in course of the political meeting, petitioner gave a political speech which constituted an offence for violation of the Model Code of Conduct.
  • On the basis of the written report, a case was registered, investigation was completed and a chargesheet was submitted. The Learned Judicial Magistrate of Ranchi, through the order dated 03.09.2014 / 09.05.2014, took cognizance of offences by petitioner under IPC.
  • The petitioner had contended that the order taking cognizance reflected non-application of judicial mind and alleging that the same had been passed on a printed format by filling up the blank spaces.

Issue

Whether the allegation in the present case, that the petitioner organised a political meeting in open space in the school premises without prior permission, violated the order of prohibition and be a cause for the alleged offences?

Arguments Advanced by The Petitioner

  • Learned counsel for the petitioner referred to the definition of ‘unlawful assembly’, and submitted that none of the ingredients of unlawful assembly were satisfied in the present case. As per the allegation in the F.I.R., the alleged meeting was convened in the premises of the school.
  • It was further contended that the offence under Section 188 of IPC was also not tenable as the basic ingredients of the offence under 188 were not satisfied. The complaint was not even maintainable in the absence of allegation of danger to life, health or of riot. There was no such allegation in the present case.
  • It was submitted that as per the provisions of CrPC, no court shall take cognizance of offence, unless a complaint petition was filed by the person who was either superior or the person who had issued the order. The prohibition order was issued by the SDO and the F.I.R. had been lodged by the Block Animal Husbandry Officer, who was deputed as the Magistrate. Hence, the cognizance could not have been taken under Section 188 IPC.
  • In the light of various leading case laws, it was contended that it had been clearly held that no cognizance could be taken for the offence under Section 188 of the IPC on the basis of police report.
  • It was contended that the earliest date of election in Jharkhand was 10th April, 2014 and the present incident relates to Ranchi, where the date of election was 17th April, 2014. F.I.R had been instituted on 11.03.2014 and the alleged date of incident was 09.03.2014.When the petitioner was alleged to had called a meeting in connection with certain election, no polling was scheduled in the next 48 hours.
  • The date of incident was much beyond 48 hours and hence, the condition precedent for constituting an offence under Section 126of the Representation of People Act was not satisfied and no case was to be made.

Arguments Advanced by The Opposite Party

  • Learned Counsel for the state contended that no interference should be done by the court at this stage of the proceedings. Section 143 and 188 of IPC are cognizable offences. The argument of the petitioner that no court shall take cognizance of offence, unless a complaint was made before the Magistrate was not tenable.
  • In State of Punjab v. Raj Singh & Anr., it had been held that there was no bar in lodging of the F.I.R, but whether the cognizance can be taken without a complaint or not was to be seen at the time of taking cognizance.
  • It had been contended that the Model Code of Conduct had commenced from the date of issuance of the Press Notification. An affidavit had been filed for bringing on record a photocopy of Memo No.496/Confidential, Ranchi dated 09.03.2014 and another affidavit had also been filed, on behalf of the State of Jharkhand, bringing on record a copy of order of prohibition passed by the Sub Divisional Magistrate, Ranchi under section 144 CrPC as contained in Memo No.01/Confidential, Ranchi dated 05.03.2014.

Judgement Analysis

  • The Court observed that though there were certain insertions or corrections by pen in the order taking cognizance, but it couldn’t be said that the impugned order taking cognizance had been passed on a printed format by filling up the blank spaces.
  • The Court was of the view that the order taking cognizance reflected sufficient application of judicial mind. A detailed or fully reasoned order was not required to be passed particularly when cognizance was taken on basis of a police report.
  • In the Memo dated 05.03.2014, while issuing order of prohibition, reference was made regarding declaration of election and coming into force of model code of conduct and there being apprehension of violation of law and order on account of rivalry amongst groups. It was ordered that no political meeting etc.can be organised without prior permission.
  • The Court held that in the present case, an F.I.R. was lodged by the Block Animal Husbandry Officer who was deputed as the Magistrate. Such cognizance of the offence under Section 188 of the IPC, on the basis of the F.I.R. and the charge-sheet, was not tenable.
  • In State of Punjab v. Raj Singh &Anr., case, the F.I.R was instituted for offences under IPC for commission of alleged offence in course of proceeding of the Civil suit and therefore it was held by the Hon’ble Supreme Court that there was nothing in Section 195 of CrPC that restricts the court from filing a complaint for the offence based on the F.I.Rfiled by the aggrieved party or based on the evidence collected during investigation
  • In light of the above-mentioned case, the Court was of the opinion that offence under Section 188, being a cognizable offence, the institution of FIR and investigation was not barred under law and certainly a complaint by the competent authority could be filed on the basis of F.I.R or the material collected during investigation before competent court. In absence of such a complaint, cognizance cannot be taken in view of the specific bar under Section 195 of CrPC.
  • The Court observed that there was no bar in institution of F.I.R,but cognizance of offence under Section 188 IPC could not be sustained in the eyes of law, the same had not been taken on the back drop of a complaint.
  • Holding a public political meeting by a candidate of election,after coming into force of Model Code of Conduct followed by issuance of order of prohibition, would amount to formation of unlawful assembly where common object of the persons composing that assembly would be to act in violation of the order.
  • Offence under Section 143 of the IPC was made out against the petitioner in the light of the allegations and materials collected during investigation. Just because the political meeting was held in the playground of a school,by itself had no bearing in the matter,particularly when it was alleged that public had participated in the political meeting. Hence, order taking cognizance for offence under Section 143 IPC was not interfered by the Court.
  • The F.I.R. had been instituted on 11.03.2014. No polling was scheduled within 48 hours of 09.03.2014 at Ranchi. As the date of incident was much beyond 48 hours from the date of the election, the Court held that the condition precedent for constituting an offence under Section 126(1)(a) of the Representation of People Act, was not satisfied.
  • The impugned order taking cognizance was set aside to the extent it relates to offence under Section 126 of the Representation of People Act, 1951 and offence under Section 188 IPC. Since cognizance under section 188 IPC had been set-aside on technical grounds,the concerned authorities may proceed in accordance with law.
  • The impugned order taking cognizance of offence under section 143 of IPC did not call for any interference and the appropriate Learned Court was directed to proceed with the matter expeditiously.

Conclusion

The Honourable High Court adjudicated upon the provision of punishment for unlawful assembly as envisaged under Indian Penal Code, 1860 and the power of a court to take cognizance of offences under CrPC. Convening a political meeting after declaration of model code of conduct by the proper officer was held to be punishable under IPC. It was also held that allegations under Section 188 of IPC could not be sustained in the eyes of law when there was no complaint regarding the same to the Magistrate and cognizance was merely based on FIR.

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