Amitabh Choudhary vs The State Of Jharkhand
2022 Latest Caselaw 420 Jhar

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               IN THE HIGH COURT OF JHARKHAND AT RANCHI

                                 Cr. M .P. No. 856 of 2019

           Amitabh Choudhary             ...    ...     ...     Petitioner
                                  Versus
         1. The State of Jharkhand
         2. Sahdeo Murmu                      ...     ...     Opposite parties
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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For the Petitioner : Mr. Amit Kumar Das, Advocate For the Opposite Parties : Mr. Vishwanath Ray, Advocate

Through Video Conferencing

7/11.02.2022

1. Heard Mr. A.K. Das, learned counsel appearing on behalf of the petitioner.

2. Heard Mr. Vishwanath Ray, learned counsel appearing on behalf of the State.

3. Learned counsel for the petitioner submits that in the present case cognizance has been taken for offence under Section 143 and 188 of the Indian Penal Code and also under section 126(1) (a) of Representation of People Act on the basis of a police report. Learned counsel submits that so far as Section 143 IPC is concerned, the same is punishment for being a member of unlawful assembly and unlawful assembly has been defined under Section 141 IPC and by referring to the definition of unlawful assembly, learned counsel submits that none of the ingredients of unlawful assembly is satisfied in the present case. He further submits that even as per the allegation in the F.I.R., the so called meeting was convened in the premises of the school. The learned counsel further submits that so far as offence under Section 188 IPC is concerned, the same is also not made as the basic ingredient of offence under 188 IPC is not satisfied considering the allegations made in the present case. The learned counsel further submits that as per the provisions Section 195 of Cr. P.C., no court shall take cognizance of offence, unless a complaint petition is filed by the person who is either superior or the person who had issued the prohibitory order. Learned counsel submits that in the present case, prohibitory order has been issued by the SDO and the F.I.R. has been

lodged by the Block Animal Husbandry Officer, who was deputed as the Magistrate. The learned counsel submits that in view of the aforesaid facts and circumstances, the cognizance could not have been taken under Section 188 IPC. While referring to Section 126(1)

(a) of the Representation of People Act, the learned counsel submits that a counter affidavit has been filed in the present case and at page 37 it has been mentioned that earliest date of election in Jharkhand was 10th of April, 2014 and the present incident relates to Ranchi and the date of election in Ranchi was 17th April, 2014, for which he refers to page no. 13 of the counter affidavit. Learned counsel submits that the F.I.R. in the present case has been instituted on 11.03.2014 and the alleged date of incident is 09.03.2014 and thereafter he refers to Section 126 of the Representation of People Act and submits that it clearly prohibits public meeting during prior period of 48 hrs. fixed for conclusion of poll. He submits that considering the aforesaid aspect of the matter, the date of incident is much beyond 48 hours and accordingly no case under Section 126 (1)

(a) of the Representation of People Act is also made out. Learned counsel has referred to judgment passed by Hon'ble Patna High Court reported in 2019 SCC Online Patna 654 (Pashupati Kumar versus State of Bihar) decided on 13th May, 2019. He has also referred to judgment passed by the Hon'ble Madras High Court reported in 2019 SCC Online Madras 35292 (Thanuskodi and another versus Inspector of Police and Another) decided on 18th November, 2019. Learned counsel has further referred to another judgment of Hon'ble Patna High Court reported in 2016 SCC Online Patna 3622 (Dharmesh Prasad Verma versus State of Bihar) and he submits that in these cases it has been clearly held that no cognizance can be taken for the offence under Section 188 IPC on the basis of the police report. He further submits that these judgments are based on the judgment passed by the Hon'ble Supreme Court reported in (2000) 1 SCC 278 and AIR 1962 SC 1206. The learned counsel for the petitioner has also submitted that the impugned order taking cognizance reflects non application of judicial mind, as the same has been passed on a printed format by filling up the blank spaces.

4. Learned counsel appearing on behalf of the State on the other hand

while opposing the prayer has submitted that no case for interference at this stage is made out. Learned counsel has further submitted that bother Section 143 and 188 are cognizable and bailable offences and accordingly the argument of the petitioner that no court shall take cognizance of offence unless a complaint made before the Magistrate is not correct. He submits that since the offence is cognizable, therefore, F.I.R. can also be registered.

5. After hearing the learned counsel for the parties, as the court time is over, matter is adjourned for further hearing to be listed on 18.02.2022.

(Anubha Rawat Choudhary, J.) Binit/