Telangana High Court
Sri.Etala Rajender vs The State Of Telangana on 18 November, 2024
Author: K. Lakshman
Bench: K. Lakshman
HON'BLE SRI JUSTICE K. LAKSHMAN
CRIMINAL PETITION No.882 OF 2024
ORAL ORDER:
Heard Mr. J. Prabhakar, learned Senior Counsel representing Mr. Gummalla Bhasker Reddy, learned counsel for the petitioner and Mr. Syed Yasar Mamoon, learned Additional Public Prosecutor appearing on behalf of respondent No.1 - State.
2. This Criminal Petition is filed under Section - 482 of the Code of Criminal Procedure, 1973, to quash the proceedings in C.C. No.237 of 2022 pending on the file of Special Judicial Magistrate of First Class for Excise Cases, Hyderabad.
3. The petitioner herein is arraigned as sole accused in the said case. The offences alleged against him are under Sections - 188, 171-G & 504 of IPC and Section - 123 (5) of the Representation of People Act, 1951 (for short 'R.P. Act').
4. Respondent No.2, Flying Squad Team, Kamalapur, lodged a complaint dated 13.10.2021 with Kamalapur Police Station stating that on 09.10.2021 at about 6.30 p.m., the petitioner participated in an election meeting at Guniparthy Village of Kamalapur Mandal and made a statement that TRS Party leaders 2 KL,J Crl.P. No.882 of 2024 are going to give Rs.20,000/- to Rs.50,000/- net cash and 2 kgs. Of mutton and Rs.2000/- to each person and, therefore, receive the same and exercise their vote in his favour, and thereby, the petitioner committed the aforesaid offences. Thus, he requested the police to take action against the petitioner herein.
5. On receipt of the said complaint, the police of Kamalapur registered a case in Crime No.199 of 2021 for the aforesaid offences. On completion of investigation, Investigating Officer laid the charge sheet against the petitioner and the same was taken on file vide C.C. No.237 of 2022 for the aforesaid offences.
6. During the course of investigation, the Investigating Officer recorded the statements of respondent No.2 as LW.1 and LWs.2 to 6 of which LWs.2 and 3 were present at the time of scene of offence while LWs.4 to 6 are eye-witnesses. LWs.7 and 8 are panch witnesses. LWs.9 and 10 are Investigating Officers.
7. It is relevant to refer to Section - 188 of IPC and Section 126 of R.P. Act, and the same are extracted hereunder:
"188. Disobedience to order duly promulgated by public servant.--Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to 3 KL,J Crl.P. No.882 of 2024 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 impris- onment 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.
Illustration An order is promulgated by a public servant lawfully empowered to promulgate such order, directing that a religious procession shall not pass down a certain street. A knowingly disobeys the order, and thereby causes danger of riot. A has committed the offence defined in this section."4
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8. In N.T. Rama Rao v. The State of A.P., rep. by Public Prosecutor 1 while dealing with the offences under Sections - 188 and 283 of IPC, the learned Single Judge held as under:
"5) Even if the allegation that the petitioner conducted public meetings at three road junctions contrary to the permission accorded for conducting of a public meeting only at one specified place is true, such a direction under Section 30 of the Police Act, 1861 could have been given only by the Superintendent or the Assistant Superintendent of Police of the District but not by any of their subordinates. If such a permission is granted under Section 30 of the Police Act, 1861 and is violated, Section 195 (1) (a) of Code of Criminal Procedure mandates that the complaint in this regard has to be made by the public servant concerned or some other person to whom such a public servant is administratively subordinate to enable any Court to take cognizance of an offence under Section 188 of Code of Criminal Procedure. In the present case, the charge sheet was filed by the Sub Inspector of Police, who could not have been the authority to grant permission for the public meeting and therefore, the complaint/charge sheet is in 1 . Criminal Petition No.5323 of 2009, decided on 17.09.2009 5 KL,J Crl.P. No.882 of 2024 violation of the mandatory provision of Section 195(1)(a) of Code of Criminal Procedure.
6) That apart, the offence alleged to have been committed under Section 283 of the Indian Penal Code by the petitioners and others is obviously in consequence to the alleged offence under Section 188 of Indian Penal Code and is not an independent of the same.
Even otherwise, the conduct of public meeting at three road junctions or obstruction to the traffic could not have been considered as causing any danger or injury to any person. In so far as the obstruction in any public way is concerned, which can also be covered by Section 283 of the Indian Penal Code, the charge sheet cites only one witness to speak about the traffic jam caused by the road show. But, when the conduct of the public meeting at least at one place has been permitted and if the gathering for that public meeting resulted in any inconvenience by way of obstructing the traffic, the same cannot be considered to be with necessary guilty mens rea to construe the existence of an offence punishable under Indian Penal Code. Under the circumstances, none of the offences alleged can be said to have any reasonable basis and in any view, the complaint/charge sheet being in violation of 6 KL,J Crl.P. No.882 of 2024 Section 195 (1) (a) of Code of Criminal Procedure, has to fail.
7) As the complaint has failed due to its un- sustainability, the proceedings in their entirety have to fail, though the 1st accused alone approached this Court by way of this Criminal Petition."
9. In Thota Chandra Sekhar v. The State of Andhra Pradesh, through S.H.O., P.S. Eluru Rural, West Godavari District 2 relying on various judgments including N.T. Rama Rao1 and the guidelines laid down by the Hon'ble Supreme Court in State of Haryana v. Bhajan Lal 3, more particularly, guideline No.6, which says that where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious remedy to redress the grievance of the party, a learned Single Judge of High Court of Judicature at Hyderabad for the States of Telangana and Andhra Pradesh quashed the proceedings in the said C.C. by exercising power under Section - 482 of Cr.P.C. It further 2 . Criminal Petition No.15248 of 2016, decided on 26.10.2016 3 . (1992) Supp. 1 SCC 335 7 KL,J Crl.P. No.882 of 2024 held that the proceedings shall not be continued due to technical defect of obtaining prior permission under Section - 155 (2) of Cr.P.C. and taking cognizance on the complaint filed by V.R.O. and it is against the purport of Section - 195 (1) (a) of Cr.P.C.
10. Therefore, there should be an allegation that the petitioner violated the orders issued either by the Election Commission of India or State Election Commission or any Election Authority not to convene any meeting. Even the Investigating Officer did not follow the procedure laid down under Section - 155 of Cr.P.C. Therefore, the proceedings for the offence under Section
- 188 of IPC are liable to be quashed.
11. With regard to the offence under Section - 171G of IPC, it deals with 'false statement in connection with an election', and it says that 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 shall be punished with fine. 8
KL,J Crl.P. No.882 of 2024 Therefore, the following ingredients are required to constitute the said offence:
a. making a statement in connection with an election;
b. it should be a false statement;
c. he should have knowledge or belief that the said statement is false or does not believe to be true; d. it should be in relation to personal character; and e. conduct of any candidate.
As discussed above, contents of the complaint and charge sheet lack the ingredients of the aforesaid offence.
12. As far as the offence under Section - 504 of IPC is concerned, it deals with 'intentional insult with intent to provoke breach of the peace', and it says that whoever intentionally insults, and thereby gives provocation to any person, intending or knowing it to be likely that such provocation will cause him to break the public peace, or to commit any other offence, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. 9
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13. Section - 125 of R.P. Act deals with 'corrupt practices' and sub-section (5) says that the hiring or procuring, whether on payment or otherwise, of any vehicle or vessel by a candidate or his agent or by any other person with the consent of a candidate or his election agent or the use of such vehicle or vessel for the free conveyance of any elector (other than the candidate himself the members of his family or his agent to or from any polling station provided under section 25 or a place fixed under sub-section (1) of section 29 for the poll. Provided that the hiring of a vehicle or vessel by an elector or by several electors at their joint costs for the purpose of conveying him or them to and from any such polling station or place fixed for the poll shall not be deemed to be a corrupt practice under this clause if the vehicle or vessel so hired is a vehicle or vessel not propelled by mechanical power: Provided further that the use of any public transport vehicle or vessel or any tramcar or railway carriage by any elector at his own cost for the purpose of going to or coming from any such polling station or place fixed for the poll shall not be deemed to be a corrupt practice under this clause.
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14. Perusal of statements of LWs.1 to 6 would reveal that they have not stated about making of false statement by the petitioner in connection with election and the contents of the said statements lack the ingredients of Sections - 171G and 504 of IPC and Section - 123 (5) of R.P. Act. Further, in the charge sheet, there is reference to the petitioner and others, but the Investigating Officer did not conduct investigation with regard to others. Charge sheet is filed only against the petitioner and cognizance was also taken against him.
15. In Bhajan Lal3, the Apex Court cautioned that power of quashing should be exercised very sparingly and circumspection and that too in the rarest of rear cases. While examining a complaint, quashing of which is sought, Court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or in the complaint. The Apex Court in the said judgment laid down certain guidelines/parameters for exercise of powers under Section - 482 of Cr.P.C., which are as under:
"(1) Where the allegations made in the first information report or the complaint, even if 11 KL,J Crl.P. No.882 of 2024 they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent 12 KL,J Crl.P. No.882 of 2024 person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or Act concerned, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
The said principle was reiterated by the Apex Court in catena of decisions.
16. In view of the aforesaid discussion and the principle laid down in the aforesaid decisions, continuation of proceedings in the aforesaid C.C. against the petitioner is an abuse of process of law and, therefore, the proceedings in the aforesaid C.C. are liable to be quashed against the petitioner herein.
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17. Learned Additional Public Prosecutor would further contend that the trial Court dismissed the discharge application filed by the petitioner vide Crl.M.P. No.1085 of 2023 on 22.09.2023. Therefore, the petitioner cannot seek quashment of the proceedings in C.C. No.237 of 2022. But, dismissal of discharge application is not a ground to maintain the present petition filed under Section - 482 of Cr.P.C. to quash the proceedings in C.C. No.237 of 2022.
18. In view of the aforesaid discussion, the present Criminal Petition is allowed and the proceedings in C.C. No.237 of 2022 pending on the file of Special Judicial Magistrate of First Class for Excise Cases, Hyderabad, are hereby quashed against the petitioner herein - accused.
As a sequel, miscellaneous petitions, if any, pending in the Criminal Petition shall stand closed.
_________________ K. LAKSHMAN, J 18th November, 2024 Mgr