Jharkhand High Court
Ashutosh Verma vs The State Of Jharkhand on 23 February, 2022
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 1077 of 2016
Ashutosh Verma, son of Shri S.S.P. Verma, resident of 123, Co-operative
Colony, Bokaro Steel City, P.O. & P.S. B.S. City, District- Bokaro
... Petitioner
-Versus-
The State of Jharkhand ... Opposite Party
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioner : Mr. Pandey Neeraj Rai, Advocate
For the Opposite Party-State : Mrs. Nehala Sharmin, A.P.P.
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06/23.02.2022. Heard Mr. Pandey Neeraj Rai, learned counsel for the petitioner and
Mrs. Nehala Sharmin, learned A.P.P. for the State.
2. This petition has been taken through Video Conferencing in view of
the guidelines of the High Court taking into account the situation arising due
to COVID-19 pandemic. None of the parties have complained about any
technical snag of audio-video and with their consent this matter has been
heard.
3. This petition has been filed for quashing the entire criminal
proceeding as against the petitioner in Baghmara P.S. Case No.91/14
corresponding to G.R. No.1500/14, pending in the court of the learned
S.D.J.M., Dhanbad, under Section 188 and 171H of the Indian Penal Code
including the orders explaining substance of accusation dated 23.01.2016,
pending in the court of the learned S.D.J.M., Dhanbad.
4. The FIR was registered on 09.04.2014 as Baghmara P.S. Case
No.91/14 under Section 188 and 171H of the Indian Penal Code against one
Janeshwar Mahto and the petitioner. The informant is one Ram Swaroop
Pathak, Flying Squad-043 Baghmara (Dhanbad). The allegation levelled is
that the flag of Trinmul Congress and JDU have been put on electricity pole
near Dumra More, Raja Saheb Chowk, which was seen by the informant on
08.04.2014. This is violation of the Model Code of Conduct. The petitioner
was shown as the candidate of one political party. A video CD is stated to be
enclosed with the FIR. The charge-sheet was filed and thereafter
cognizance was taken on 21.11.2014 and substance of accusation was
explained on 23.01.2016 by the learned S.D.J.M., Dhanbad for the offence
under Section 188 and 171H of the Indian Penal Code.
5. Learned counsel for the petitioner submits that the petitioner was
contesting election and for hanging flag on electricity pole, the case has
been lodged against the petitioner. He further submits that ingredients of
Section 188 and 171H of the Indian Penal Code are not made out. He also
submits that there is no promulgation on behalf of the district administration
and, hence, Section 188 of the Indian Penal Code is not attracted.
6. Mrs. Nehala Sharmin, learned A.P.P. for the State submits that there is
no illegality in lodging of the said FIR and explanation of substance of
accusation and the learned court below has rightly proceeded.
7. The Court has perused the FIR. In the FIR, only allegation is that the
flag of the political party was hanging on the electricity pole near Dumra
More, Raja Saheb Chowk and on that basis, an FIR has been lodged under
Section 188 and 171H of the Indian Penal Code. In order to attract Section
188 of the Indian Penal Code, following ingredients have to be proved,
namely,-(1) that there must be an order promulgated by the public servant;
(2) that such public servant is lawfully empowered to promulgate it; (3) that
the person with knowledge of such order and being directed by such order
to abstain from doing certain act or to take certain order with certain
property in his possession and under his management has disobeyed; and
(4) that such disobedience causes or tends to cause (a) obstruction,
annoyance or risk of it to any person lawfully employed; or (b) danger to
human life, health or safety; or (c) a riot or affray. A reference may be
made to the judgment rendered in the case of Ram Manohar Lohia v.
State of U.P., reported in AIR 1968 All 100.
8. Thus so far as Section 188 of the Indian Penal Code is concerned,
ingredients are not made out in the case in hand. The petitioner is one of
the candidate and how the other person without the general or special
authority in writing of candidate has incurred expenses are not disclosed.
Thus, ingredients of Section 171H of the Indian Penal Code are also not
made out.
9. In view of the above facts and considering that ingredients of sections
are not made out and to allow to continue the proceeding in the concerned
court will amount to abuse of the process of court. Accordingly, entire
criminal proceeding in Baghmara P.S. Case No.91/14 corresponding to G.R.
No.1500/14, pending in the court of the learned S.D.J.M., including the
order explaining substance of accusation dated 23.01.2016, pending in the
court of the learned S.D.J.M., Dhanbad are, hereby, quashed and set aside.
10. Accordingly, this petition stands allowed and disposed of.
11. Consequently, I.A. No.6477 of 2016 stands disposed of.
(Sanjay Kumar Dwivedi, J.)
Ajay/
