Bombay High Court
Atul S/O Vinodrao Gudadhe vs The State Of Maharashtra, Thr. ... on 18 November, 2022
Bench: V. G. Joshi, Vrushali V. Joshi
1 apl.819.21-J
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPLICATION (APL) NO. 819 OF 2021
Atul s./o. Vinodrao Gudadhe,
Aged about 44 years, Occ: Business,
R/o. Zenda Chowk, Jaitala, Nagpur. .... APPLICANT
------ VERSUS -----
The State of Maharashtra,
Through Police Station Officer,
Police Station - M.I.D.C., Nagpur. .... NON-APPLICANT
________________________________________________________________
Shri Rohit Joshi, Advocate for the Applicant.
Shri H. D. Dubey, A.P.P. for the Non-applicant /State.
_________________________________________________________________________________________________________________________________
CORAM : VINAY JOSHI AND
MRS.VRUSHALI V. JOSHI, JJ.
DATE : 18.11.2022.
ORAL JUDGMENT : [PER : VINAY JOSHI, J.]
1. Heard.
2. This is an application in terms Section 482 of the
Code of Criminal Procedure for quashing the First Information
Report in Crime No.69/2017 registered with the Police Station
M.I.D.C., Nagpur City along with charge-sheet registered at
Summary Criminal Case No.19836/2017 pending on the file of
the 12th Judicial Magistrate First Class, Nagpur.
3. The applicant (accused) is prosecuted for the
commission of offence punishable under Section 130 of the
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Representation of the Peoples Act, 1951 (hereinafter referred
to as "the R.P. Act, 1951") along with Section 188 of the Indian
Penal Code. The challenge is principally on the ground of non-
applicability of the provisions of the R. P. Act, 1951 and
incompetency of the informant in lodging report for the
offence punishable under Section 188 of the Indian Penal
Code.
4. At the instance of the report lodged by Assistant
Police Inspector Prabhakar Shiurkar crime was registered. The
Elections for Nagpur Municipal Corporation have been
scheduled in the month of February 2017. The date of voting
was 21.02.2017. On that date around 1.00 p.m. the accused
was found distributing pamphlets having objectionable
material since the applicant was canvassing for votes, indefined
with the order dated 18.02.2017 promulgated by Assistant
Police Commissioner, Nagpur City. On registration of crime,
the objectionable pamphlets have been seized. After
completion of investigation, charge-sheet has been filed.
5. While raising challenge on facts, it is submitted
that as per promulgation, the restriction on canvassing was
imposed within the radius of 100 metres from polling station.
However, according to the Spot Panchanama, the applicant was
allegedly found distributing pamphlets at campaigning booth,
3 apl.819.21-J
which was at the distance of 200 metres from the Police
Station. We have principally examined the challenge on the
legal touchstone.
6. The first objection is about applicability of Section
130 of the R.P. Act, 1951 which prohibits canvassing in or near
polling station. Shri Rohit Joshi, learned Counsel for the
applicant would submit that the provisions of the R. P. Act,
1951 would not apply since Section 2(1)(d) of the said Act,
does not encompass the election of the Municipal Corporation.
For the purpose of ready reference, we have reproduced
Section 2(1)(d) of the R. P. Act, 1951 herein below :
"(d) "election" means an election to fill a seat or
seats in either House of Parliament or in the House
or either House of the Legislature of a State other
than the State of Jammu and Kashmir".
7. In context with the Act, the term "election" has
been defined relating to election for the House of Parliament or
in the House or either House of Legislature of a State.
Unambiguously the Section has specified its sphere of
applicability. The elections of Municipal Corporation are
governed by Schedule D in terms of Section 453 of the
Maharashtra Municipal Corporation Act, 1949. The said
provision does not adopt the applicability of the provisions of
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the R. P. Act, 1951 for the purpose of elections of Municipal
Corporation.
8. The learned A.P.P. has conceded said position
besides that he is unable to point out as to how the provisions
of the R. P. Act, 1951 would apply to the elections of Municipal
Corporation. In view of the above, submission in this regard is
well acceptable and, therefore, prosecution for the offence
punishable under Section 130 of the R. P. Act, 1951 is wholly
untenable.
9. So far as the applicability of Section 188 of the
Indian Penal Code, it has been submitted that the Police Report
filed by Assistant Police Inspector is untenable for want of
competency. In this regard, our attention has been invited to
Section 195 of the Code of Criminal Procedure which deals
with the procedure for initiating prosecution for contempt of
lawful authority of public servants, relating to offences against
public justice and for offences relating to documents given in
evidence. It provides that, if any offence punishable under
sections 172 to 188 (both inclusive) of the Indian Penal Code
has been committed, Court shall not take cognizance except on
the complaint in writing of the public servant concerned or of
some other public servant to whom he is administratively
subordinate. It is submitted that the promulgation is issued by
5 apl.819.21-J
Assistant Police Commissioner whilst the police report has been
filed by his subordinate i.e. Assistant Police Inspector.
10. The plain reading of Section 195 conveys that the
Court can take cognizance only if the concerned public servant
i.e. Assistant Police Commissioner herein or other public
servant to whom he is administratively subordinate files a
complaint. It means that Assistant Commissioner of Police or
his Superior Authority to whom he is subordinate has to file a
complaint otherwise the Court is precluded from taking
cognizance thereof. In support of said contention, he has
relied on the decision of this Court in the case of HLA SHWE &
Ors. Vs. State of Maharashtra reported in 2020(4) Bom.C.R.
(Cri.) 154. Besides that, the term "Complaint" has been defined
under Section 2(d) of the Code of Criminal Procedure which
does not include a police report. Thus, on both counts, the
prosecution is not tenable on account of incompetency of the
reporting authority.
11. For the above reasons, the prosecution is
untenable. We do not deem it necessary to enter into other
factual challenges. As the prosecution suffers technical
deficiency it goes to the root of case, therefore, continuation of
such proceeding amounts to abuse of the process of Court. In
view of above, we pass the following order :
6 apl.819.21-J
ORDER
i] The application is allowed.
ii] The First Information Report vide Crime
No.69/2017 along with charge-sheet
registered with Police Station M.I.D.C.,
Nagpur along with pending Summary
Criminal Case No.19836/2017 are hereby
quashed and set aside.
12. The Criminal Application stands disposed in above
terms.
13. All pending application also stands disposed of.
(MRS. VRUSHALI V. JOSHI, J.) (VINAY JOSHI, J.)
RGurnule
Digitally signed byRANJANA
MANOJ MANDADE
Signing Date:22.11.2022
15:18
