Gujarat High Court
Pratikbhai Bansibhai Barot vs State Of Gujarat on 21 April, 2023
Bench: M. R. Mengdey
R/CR.MA/4409/2014 JUDGMENT DATED: 21/04/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 4409 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE M. R. MENGDEY
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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PRATIKBHAI BANSIBHAI BAROT
Versus
STATE OF GUJARAT & 1 other(s)
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Appearance:
MR VAIBHAV A VYAS(2896) for the Applicant(s) No. 1
MS. KRINA CALLA, APP for the Respondent(s) No. 1
RULE SERVED BY DS for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE M. R. MENGDEY
Date : 21/04/2023
ORAL JUDGMENT
1. Present Petition has been preferred by the Petitioner (Original Accused)
under Section 482 of the Code of Criminal Procedure praying for quashing of
the FIR being II - CR No. 147 of 2014 registered with Vijapur Police Station,
Mahesana for the offence punishable under Section 171(H) of the Indian Penal
Code.
R/CR.MA/4409/2014 JUDGMENT DATED: 21/04/2023
2 Heard learned Advocate Mr. Vaibhav A. Vyas for the Applicant. He
submitted that the present FIR has been lodged against the present Petitioner
for an offence under Section 171(H) of the IPC. He submitted that the present
Petitioner was the President of Vijapur Municipality at the relevant time.
When the present FIR came to be lodged, the elections for Loksabha were
being conducted and the present Applicant was not a candidate in the said
election, and therefore, the offence punishable under Section 171(H) of IPC is
not made out against the present Petitioner. He further submitted that the said
advertisement was given by the father of the petitioner with an intention to
project the good work done by the present Petitioner as President of the Vijapur
Municipality. The present Petitioner was not aware about the said
advertisement being published by his father, and therefore, there was no
intention on part of the present petitioner of commission of any offence. He
submitted that the Petitioner is not associated with any political party, and
therefore, there was no question of the Petitioner having got the said
advertisement published to help any political party in the elections. He
therefore submitted to allow the present Application and quash and set aside
the aforesaid FIR.
3. The Application is opposed by learned APP Ms. Krina Calla. She
submitted that the offence punishable under Section 171(H) of IPC does not
require the person committing offence to contest the election in question. She
R/CR.MA/4409/2014 JUDGMENT DATED: 21/04/2023
submitted that upon perusal of the said Section, the ingredients for the said
offence are clearly made out against the present Petitioner. She therefore
submitted to dismiss the present Petition.
4. However, none appears for Respondent No.2.
5. The facts of the matter as stated, on 8.3.2014 an advertisement was
published in the name of the present Petitioner in the daily Newspaper namely
Divya Bhaskar wherein the work carried out by the present Petitioner as a
President of the Municipality was enumerated. Upon the said advertisement
being published, since the Model Code of Conduct had come into effect from
5.3.2014, the Nodal Officer of Vijapur Municipality lodged an FIR against the
present Petitioner for offence punishable under Section 171(H) of IPC.
6. It is the case of the Petitioner that since he was not contesting the
election in the Loksabha, the offence punishable under Section 171(H) would
not be attracted against him. Section 171(H) reads as under:
"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."
R/CR.MA/4409/2014 JUDGMENT DATED: 21/04/2023
7. Upon perusal of the aforesaid provision, it appears there is nothing in
the provision to the effect that only if a person is a candidate in the election and
he publishes any advertisement, then only the offence under the said provision
would be attracted against him. On the contrary the provision reads that the
petitioner without the general or special authority in writing of a candidate
incurs expenses upon any advertisement for the purpose of promoting or
procuring the election of a candidate, shall be punished with fine which may
extend to five hundred rupees. It is required to be noted that the Model Code
of Conduct has come into effect w.e.f. 5.3.2014 and the advertisement in
question was published on 8.3.2014 i.e. after the Model Code of Conduct came
into force. The timing of publication of the said advertisement indicates that
the said advertisement was published keeping in mind the ensuing parliament
elections.
8. Considering the aforesaid aspects, the ingredients for the offence
punishable under Section 171(H) are clearly made out against the present
Petitioner, and therefore, the present Petition being devoid of any merit is
hereby dismissed. Rule is discharged. The ad interim relief granted earlier
stands vacated.
(M. R. MENGDEY,J)
J.N.W
