Andhra Pradesh High Court - Amravati

Sakam Nagaraj Another vs The State Of A.P., Another on 2 December, 2022

Bench: Prashant Kumar Mishra

     IN THE HIGH COURT OF ANDHRA PRADESH: AMARAVATI

HON'BLE MR. JUSTICE PRASHANT KUMAR MISHRA, CHIEF JUSTICE


              CRIMINAL PETITION No.11267 of 2014

                         (Through physical mode)

Sakam Nagaraj, S/o Late S.Seshaiah,
Aged about 58 years, Occ: Retired Lecturer,
R/o D.No.6-1-70, Vardaraja Nagar, K.T.Road,
Tirupati, Chittoor District and another.
                                                            ..Petitioners
                                 Versus

The State of Andhra Pradesh,
Represented by its Public Prosecutor,
High Court of Andhra Pradesh, Hyderabad,
Through SHO,
Chittoor II Town Police Station and another.

                                                          ...Respondents

ORAL ORDER Dt:02.12.2022

This criminal petition has been preferred under Section 482 of

the Criminal Procedure Code (for short "Cr.P.C.") seeking quashment

of all further proceedings in C.C.No.817 of 2011 on the file of the Court

of the IV Additional District Munsif Magistrate, Chittoor Town, Chittoor

District.

2. During MLC election of Graduate Constituency of Chittoor in the

year 2011, the petitioners allegedly pasted election posters on the

compound walls of District Treasury Office, Social Welfare Office and

BC Welfare Office existing in Ambedkar Bhavan in new collectorate

complex and also affixed the wall posters on the opposite side of the

new collectorate and in public places of Chittoor Town. Against the said

illegal act of the petitioners, the Tahsildar, Chittoor Town, presented

an information to the Station House Officer, Chittoor II Town Police

Station on 10.03.2011 alleging violation of model code of conduct by

the petitioners, and consequently, liable for punishment. According to

the information given by the Tahsildar, the petitioners affixed wall

posters meant for the election campaign on the compound walls of

District Treasury Office, Social Welfare Office and B.C.Welfare Office,

thus the petitioners have violated the model code of conduct. Although

the Tahsildar has not mentioned as to the provision of law which was

violated by the petitioners, the concerned police registered the F.I.R.

for alleged violation of Sections 3 and 4 of the Andhra Pradesh

Prevention of the Disfigurements of Open Places and Prohibition of

obscene and objectionable posters and Advertisement Act, 1997 (for

short "the Act No.28 of 1997")

3. It is contended that the provisions of the Act No.28 of 1997

would attract an offence when an advertisement is made contrary to

the provisions of the Act No.28 of 1997. Affixing of election poster is

not an advertisement and therefore, the offence under the Act No.28

of 1997 is not attracted. It is also argued that the complaint is not

presented in accordance with law. Therefore, on these grounds, the

F.I.R. deserves to be quashed.

4. The Act No.28 of 1997 has been stated to be an Act to provide

for the prevention of Disfigurement by Objectionable or Unauthorised

Advertisement of Places open to public view and for the prohibition of

Printing, Publishing and Display of Obscene Posters relating to

cinemas and for matters connected therewith or incidental thereto. The

term "advertisement" has been defined under Section 2 (a) of the Act

No.28 of 1997 in the following manner:

"2 (a) "advertisement" includes any notice, circular, hand-bill, label, wrapper or other document and also includes any visible representation made by means of any light, sound, smoke or gas;

5. Sections 3 and 4 of the Act No.28 of 1997, which are relevant

for the present petition, are reproduced hereunder:

"3. Penalty for disfigurement by objectionable

advertisements -

Whoever affixes to, or inscribes or exhibits on any place open to public view any objectionable advertisement, shall be punished with imprisonment of the either description for a term which may extend to one year or with fine which shall not be less than two thousand rupees but which may extend to five thousand rupees or with both.

             4.   Penalty   for   unauthorised    disfigurement   by

      advertisements -

Whoever affixes to, or inscribes or exhibits on any place open to public view any advertisement without the written consent of the owner or occupier or person in management of the property in which such place is situated shall be punished with imprisonment of either description for a term which may extend to three months or with fine which shall not be less than one thousand rupees but which may extend to two thousand rupees, or with both."

6. A plain reading of introduction of the Act No.28 of 1997

together with definition of advertisement as provided under Section 2

(a) and the provisions contained in Sections 3 and 4 quoted above,

would manifest that what is prevented and treated to be an offence

under the Act No.28 of 1997 is the disfigurement by objectionable or

unauthorised advertisements of places open to public view and display

of obscene posters relating to Cinemas. Affixing election poster is not

an advertisement within the meaning of advertisement under Section

2 (a) of the Act No.28 of 1997 nor it amounts to any obscene poster or

objectionable advertisement. Affixing of poster in violation of model

code of conduct may attract offence under the Representation of the

People Act, 1950. But, in this Court's considered view, it may not be an

offence under Section 3 and 4 of the Act No.28 of 1997.

7. In addition to the above, this Court noticed the provision

contained in Section 16 of the Act No.28 of 1997, which reads as

under:

"16. Cognizance of offences - No court shall take cognizance of any offence punishable under this Act except on a complaint filed, in the twin cities of Hyderabad and Secunderabad, Visakhapatnam and Vijayawada by the Commissioner of Police or by any Police Officer not below the rank of an Inspector of Police authorised by him in this behalf and elsewhere by the District Collector or any Officer not below the rank of a Mandal Revenue Officer authorised by him in this behalf.

8. It is settled law that the expression 'complaint' cannot be

equated to mere information or accusation. Information submitted to

the police and consequent charge sheet is not the manner of

prosecution contemplated under Section 16 of the Act No.28 of 1997.

For this, I may profitably refer to the judgment of the Hon'ble Supreme

Court in "Bholanath Amritlal Purohit Vs. State of Gujarat"

reported in AIR 1971 Supreme Court 194. In the said decision,

referring to similar provision contained in Section 72 of the Post Office

Act, 1898, which provided that no Court shall take cognizance of an

offence punishable under any of the provisions of the Act, unless upon

complaint made by order of, or under authority from, the Director

General or a Post Master General, the Hon'ble Supreme Court

considered the question as to whether there was proper complaint in

the case and held as under:

"8. The question for consideration is whether there is such a "complaint" in this case? The expression "complaint" is not defined in the Act but the "complaint" contemplated under Section 55 is one that initiates a prosecution on the basis of which the accused if found guilty is punishable with imprisonment for a term which may extend to two years and also with a fine. That being so the expression "complaint" in Section 72 cannot be equated to mere information or accusation. The context in which that expression is used in Section 72 indicates that it is a formal document indicting an officer of the postal department for a criminal offence. The purpose behind Section 72 is that officials of the postal department should not be harassed with frivolous prosecutions and that before any of the prosecutions contemplated by Section 72 is launched, the authorities mentioned in that Section should have examined the appropriateness of launching a prosecution and either file a complaint themselves or authorise the filing of such a complaint. Such a requirement will not be satisfied if the concerned authorities merely ask the police to investigate into the case and take appropriate action. An information laid before the police or even a sanction granted for a prosecution by the police would not meet the requirements of Sec.72. If the legislature contemplated that a mere information to the police by the appropriate authority is sufficient then there was no need to enact Section 72. Further if all that was required was to obtain the sanction of the concerned authority then the legislature would have enacted a provision similar to Section 197 of the Criminal P.C. The fact that the legislature did not choose to adopt either of the two

courses mentioned above is a clear indication of the fact that the mandate of Section 72 is that there should be a formal complaint as contemplated by Section 4 (1) (h) of the Criminal Procedure Code which says :

"'Complaint" means the allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person whether known or unknown, has committed an offence, but it does not include the report of a police officer".

9. If we understand the word "complaint" in Section 72 of the Act as defined under Section 4 (1) (h) of the Criminal P.C., as we think we should, then there was admittedly no "complaint" against the appellant which means that the learned Magistrate was incompetent to take cognizance of the case. From that it follows that the trial of the case was an invalid one and that the appellant was convicted without authority of law."

9. It is, thus, clear that a Magistrate is entitled to take cognizance

of the offence punishable under the Act No.28 of 1997, if any such

offence is made out, when a complaint is filed by the competent police

officer in the twin cities of Hyderabad and Secunderabad,

Visakhapatnam and Vijayawada and elsewhere by the District Collector

or any Officer not below the rank of a Mandal Revenue Officer

authorised by him in this behalf. In the case at hand, the Tahsildar has

moved information to the concerned police. However, he has not filed

any complaint before the Jurisdictional Magistrate. Thus, the

Magistrate cannot take cognizance of the matter pursuant to the report

filed by the concerned police under Section 173 of Cr.P.C. as there is a

difference between the report under Section 173 or Cr.P.C. and