Jharkhand High Court
Dr. Nishikant Dubey vs The State Of Jharkhand .... Opposite ... on 12 January, 2024
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
1 Cr.M.P. No.3246 of 2022
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Cr.M.P. No.3090 of 2022
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Cr.M.P. No. 3091 of 2022
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Cr.M.P. No. 3100 of 2022
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 3246 of 2022
Dr. Nishikant Dubey, aged about 52 years, S/o Shri Radhey Shyam
Dubey, R/o 18, G.R.G. Road, New Delhi, P.O. and P.S. -GRG Road,
District -New Delhi -110001 .... Petitioner
Versus
The State of Jharkhand .... Opposite Party
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Cr.M.P. No. 3090 of 2022
Dr. Nishikant Dubey, aged about 52 years, S/o Shri Radhey Shyam
Dubey, R/o 18, G.R.G. Road, New Delhi, P.O. and P.S. -GRG Road,
District -New Delhi -110001 .... Petitioner
Versus
The State of Jharkhand .... Opp. Party
With
Cr.M.P. No. 3091 of 2022
Dr. Nishikant Dubey, aged about 52 years, S/o Shri Radhey Shyam
Dubey, R/o 18, G.R.G. Road, New Delhi, P.O. and P.S. -GRG Road,
District -New Delhi -110001 .... Petitioner
Versus
The State of Jharkhand .... Opp. Party
With
Cr.M.P. No. 3100 of 2022
Dr. Nishikant Dubey, aged about 52 years, S/o Shri Radhey Shyam
Dubey, R/o 18, G.R.G. Road, New Delhi, P.O. and P.S. -GRG Road,
District -New Delhi -110001 .... Petitioner
Versus
The State of Jharkhand .... Opp. Party
PRESENT
2 Cr.M.P. No.3246 of 2022
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Cr.M.P. No.3090 of 2022
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Cr.M.P. No. 3091 of 2022
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Cr.M.P. No. 3100 of 2022
HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
.....
For the Petitioner : Mr. Prashant Pallav, Advocate
: Mr. Parth Jalan, Advocate
: Ms. Shivani Jaluka, Advocate
For the State : Mr. Manoj Kumar, G.A.-III
.....
By the Court:-
1. Heard the parties.
2. All these four criminal miscellaneous petitions have arisen
out of four different F.I.Rs. in which the petitioner of all the four
criminal miscellaneous petitions is the accused person.
3. Cr.M.P. No. 3246 of 2022 relates to Devipur P.S. Case No.
179 of 2021 registered for the offences punishable under Section
188/171F/171G/506 of the Indian Penal Code. The Block
Development Officer, Devipur, in the District of Deoghar is the
informant of this case. The allegation made in this FIR is that on
11.04.2021, the petitioner being the Hon'ble Member of Parliament
made a posting on twitter alleging that no action is being taken in
the matter of blockade (jam) held by the Jharkhand Mukti Morcha
within Madhupur Assembly Constituency Area but threatening of
instituting false case is being given to BJP. The informant -Abhay
Kumar being the Block Development Officer clarified in the F.I.R.
that the blockade (jam) was made by unknown persons on the
Devipur-Ranchi Main Road in connection of which an F.I.R. has
been lodged in the local police station. The blockade (jam) was not
arranged by the Jharkhand Mukti Morcha and the allegation that no
F.I.R. has been registered is not true. So far as the allegation of
threatening to institute false case against the BJP, it was clarified
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by the informant that on 08.04.2021 in several newspapers
advertisement has been published in violation of the directions
and conditions of the Chief Election Commissioner, hence the
Hon'ble Member of Parliament has violated the Law and upon the
same, Devipur P.S. Case No. 179 of 2021 has been registered.
4. Cr.M.P. No. 3090 of 2022 relates to the F.I.R. of Chitra P.S.
Case No. 59 of 2021 registered for the offences punishable under
Section 171C/171F/171G/182/188/504 & 505(1) of the Indian
Penal Code. The same has been lodged on the written report
submitted by the Block Development Officer, Sarath in the District
of Deoghar. It has been alleged therein that the petitioner being
the Hon'ble Member of Parliament on 18.03.2021 in his own
twitter made a twit, the photocopies of which were annexed to the
F.I.R. and on the oral direction of the Deputy Commissioner,
Deoghar to lodge the F.I.R., in accordance with law, the same has
been lodged by the informant-Pallavi Sinha, Block Development
Officer, Sarath in the District of Deoghar. Perusal of the twit
reveals that the petitioner allegedly posted a paper cutting
showing that a demonstration was done in violation of the Model
Code of Conduct by the Jharkhand Mukti Morcha and commented
that in the District of Deoghar despite the model code of conduct,
demonstrations are being made in utter violation of the same,
hence the Election Commissioner should take action against the
Deputy Commissioner and other officers. On the basis of the
same, Chitra P.S. Case No. 59 of 2021 has been registered alleging
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commission of the offences punishable under Section
171C/171F/171G/182/188/504/505(1) of the Indian Penal Code.
5. Cr.M.P. No. 3091 of 2022 relates to the F.I.R. being
Madhupur P.S. Case No. 119 of 2021 registered for the offences
punishable under Section 116/188/506/171F of the Indian Penal
Code wherein the Block Development Officer, Madhupur in the
District of Deoghar has alleged that on 15.04.2021, the twitter post
was made to circulate the information amongst the voters that the
person who posted the twitter post was assembled in front of the
house of Dr. Irfan Ansari, the Hon'ble Member of Legislative
Assembly, Jamtara for hours to contest Dr. Irfan Ansari. The
provisions for food and drinks were made by the senior workers
of the BJP but it was found out that Dr. Irfan Ansari was an
absconder. The said posting of the petitioner- being the Hon'ble
Member of Parliament, created a communal disharmony amongst
the voters and an attempt was made to develop a confrontation. It
is alleged that thus the Hon'ble Member of Parliament has
committed the offences punishable under Section 116/188/
506/171F of the Indian Penal Code and on the basis of the same,
Madhupur P.S. Case No. 119 of 2021 was registered for the said
offences.
6. Cr.M.P. No. 3100 of 2022 relates to Deoghar (Town) P.S.
Case No. 527 of 2021 which has been registered for the offence
punishable under Section 171F/188/506 of the Indian Penal Code.
The District Public Relation Officer, Deoghar is the informant of
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that case. It has been alleged in the said F.I.R. that the petitioner
being the Hon'ble Member of Parliament of Godda Parliamentary
Constituency on 11.04.2021 from his verified twitter account made
a twit alleging that Mr. Manjunath Bhaijantari, the Deputy
Commissioner is involved in the Election as a worker of the
Jharkhand Mukti Morcha. The petitioner also made allegation that
no case was instituted against Jharkhand Mukti Morcha but for
the advertisement of Godda, a threatening was given for
institution of false case against BJP. Hence, the Deputy
Commissioner should be removed immediately. It was opined by
the informant that such posting on social media was made to put
unethical pressure upon the Deputy Commissioner. It was also
alleged therein that on 08.04.2021, advertisements were made in
several newspapers in violation of the directions and conditions of
the Chief Election Commissioner and on the basis of the same,
Deoghar (Town) P.S. Case No. 527 of 2021 was registered.
7. It is submitted by Mr. Prashant Pallav, the learned counsel
for the petitioner, relying upon the Judgment of Hon'ble Supreme
Court of India in the case of Daulat Ram Vs. State of Punjab,
reported in 1962 Supp (2) SCR 812 para -3 of which reads as
under:-
"3. The only question in this case is whether a complaint in
writing as required by S. 195 had been presented by the
public servant concerned. The public servant who was moved
by the appellant was undoubtedly the Tehsildar. Whether the
appellant wanted the Tehsildar to take action or not, the fact
remains that he moved the Tehsildar on what is stated to be a
false averment of facts. He had charged Hans Raj and Kans
Raj with offences under the Penal Code and he had moved his
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superior officer for action even though he might have stated
in the letter that it was only for his information. We are
prepared to assume that he expected that some action would
be taken. In fact his second letter that he had compromised
the matter and the proceeding might be dropped clearly
shows that it anticipated some action on the part of his
superior officer. The question is therefore whether under the
provisions of S. 195, it was not incumbent on the Tehsildar
to present a complaint in writing against the appellant and
not leave the court to be moved by the police by putting in a
charge-sheet. The words of S. 1950 the Criminal Procedure
Code are explicit. The section read as follows:
"(1) No Court shall take cognizance-(a) of any offence
punishable under Ss. 172 to 188 of the Indian Penal Code,
except on the complaint in writing of the public servant
concerned, or of some other public servant to whom he is
subordinate;...............................................:"
The words of the section, namely, that the complaint has
to be in writing by the public servant concerned and that no
court shall take cognizance except on such a complaint
clearly show that in every instance the court must be moved
by the appropriate public servant. We have to decide
therefore whether the Tehsildar can be said to be the public
servant concerned and if he had not filed the complaint in
writing, whether the police officers in filing the charge sheet
had satisfied the requirements of S. 195. The words "no court
shall take cognizance" have been interpreted on more than
one occasion and they show that there is an absolute bar
against the court taking seisin of the case except in the
manner provided by the section." (Emphasis supplied)
And submits that the words "no court shall take
cognizance" means that there is an absolute bar against the court
taking seisin of the case except in the manner provided by the
Section and submits that the public servant is expected to lodge
the complaint, if there is any violation of Section 188 of the Indian
Penal Code.
8. Relying upon the Judgment of Hon'ble Patna High Court
in the case of Dharmesh Prasad Verma Vs. The State of Bihar,
reported in (2016) SCC Online Pat 3622, para -17 of which reads
as under:-
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"17. The provision prescribed under Section 195 of the CrPC
has been carved out as an exception to the general rule
contained under Section 190 of the CrPC that any person
can set the law into motion by making a complaint, as it
prohibits the Court from taking cognizance of certain
offences until and unless a complaint has been made by some
particular authority or person. The legislative intention
appears to be clear from the language of Section 195 of the
CrPC which clearly prescribes that where an offence is
committed under Section 188 IPC, it would be obligatory
that the public servant before whom such an offence is
committed, should file a complaint before the jurisdictional
Magistrate either orally or in writing. Hence, it would not be
within the domain of the police to register a case for an
offence alleged under Section 188 of the IPC and investigate
the same, as registration of an FIR for an offence under
Section 188 IPC is not permitted by the CrPC."
It is submitted by the learned counsel for the petitioner
that it would not be within the domain of the police to register a
case for an offence alleged under Section 188 of the Indian Penal
Code and investigate the same as registration of an F.I.R. for an
offence punishable under Section 188 of the Indian Penal Code is
not permitted by the Cr.P.C.
9. In support of this contention, the learned counsel for the
petitioner also relies upon the Judgment of Hon'ble Supreme
Court of India, in the case of State of U.P. Vs. Mata Bhikh and
Others, reported in (1994) 4 SCC 95, para -16 of which reads as
under:-
"16. Therefore, in the light of the dictum laid down in Ajaib
Singh [AIR 1968 SC 1422 : 1969 Cri LJ 4 : 70 Pun LR
1131] we are of the view that the successor in office of the
public servant gets into the same position of the public
servant concerned and he is in law eligible to file a complaint
against wrongdoers. To say in other words, the successor in
office falls within the ambit of the expression 'public servant
concerned'. The view taken by the High Court in the
impugned judgment cannot be sustained and accordingly,
the judgment of the High Court is set aside and the appeal is
allowed."
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10. It is then submitted by the learned counsel for the
petitioner that except the offence punishable under Section 188 of
the Indian Penal Code all other offences involving all the four
F.I.Rs. are non-cognizable offences except Section 116 of the
Indian Penal Code and whether the offence punishable under
Section 116 of the Indian Penal Code, is cognizable or not depends
upon the offences alleged to have been committed. It is then
submitted by the learned counsel for the petitioner that none of
the First Information Reports discloses as to which public order
has been flouted by the petitioner and in the absence of the same,
the penal provisions of the Indian Penal Code is not attracted. It is
then submitted by the learned counsel for the petitioner that the
offences punishable under non-cognizable offences are also not
made out on the basis of the allegations made in the four F.I.Rs.
11. Drawing attention of this Court to Section 155(2) of the
Code of Criminal Procedure, it is submitted by the learned
counsel for the petitioner that the same stipulates that when the
offences are not cognizable in nature, the police is not entitled to
register an F.I.R. and to investigate the matter without the order of
the Magistrate, as has been held by the Hon'ble Supreme Court of
India, in the case of Keshav Lal Thakur Vs. State of Bihar,
reported in (1996) 11 SCC 557.
12. It is next submitted by the learned counsel for the
petitioner that as for the same cause of action, the informants of
the four F.I.Rs. who are public servants being the officers working
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under the Deputy Commissioner, Deoghar having registered five
different F.I.R. including the four F.I.Rs. in respect of which the
aforesaid criminal miscellaneous petitions have been instituted
goes to show that the F.I.Rs. have been lodged for wrecking
vengeance upon a respectable person like the petitioner who is
undisputedly the Hon'ble Member of Parliament. Hence, it is
submitted that the entire criminal proceeding including the F.I.Rs.
of the said four cases i.e. Devipur P.S. Case No. 179 of 2021, Chitra
P.S. Case No. 59 of 2021, Madhupur P.S. Case No. 119 of 2021 &
Deoghar (Town) P.S. Case No. 527 of 2021 be quashed and set
aside as the continuation of the same will amount to abuse of
process of law.
13. Mr. Manoj Kumar, learned G.A. -III appearing for the
State on the other hand vehemently opposes the prayer for
quashing the First Information Reports of the four cases and
drawing attention of this Court to the Judgment of a coordinate
Bench of this Court, in the case of Amitabh Choudhary Vs. The
State of Jharkhand & Anr., in Cr.M.P. No. 856 of 2019, it is
submitted by the learned G.A.-III that in para-30 of the said
judgment, the coordinate Bench of this Court has expressed the
view that offence punishable under Section 188 of the Indian
Penal Code being a cognizable offence, institution of the F.I.R. is
not barred.
14. Mr. Manoj Kumar, the learned G.A.-III next relies upon
the Judgment of Hon'ble Supreme Court of India in the case of
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State of Punjab Vs. Raj Singh and Another, reported in (1998) 2
SCC 391 which judgment was also relied upon by the coordinate
Bench in the case of Amitabh Choudhary Vs. The State of
Jharkhand & Anr. (supra) formulating such view wherein in the
facts of that case, when the High Court quashed the F.I.R. lodged
against respondents of that case alleging commission of offence
punishable under Section 419/420/467/468 of the Indian Penal
Code by them in the course of proceeding of a Civil Suit on the
ground that Section 195 (1)(b)(ii) of the Cr.P.C. prohibited
entertainment of the investigation into the same by police, the
Hon'ble Supreme Court of India held that Section 195 Cr.P.C.
comes into operation at the stage when the Court intends to take
cognizance of an offence under Section 190(1) Cr.P.C. and it has
nothing to do with the statutory powers of police to investigate
into the F.I.R. to discloses cognizable offences in accordance with
Chapter -XII of the Code of Criminal Procedure, even if the
offence is alleged to have been committed in, or in relation to, any
proceeding in court.
15. It is then submitted by the learned G.A.-III, relying upon
the judgment of Hon'ble Supreme Court of India in the case of
Ashabai Machindra Adhagale Vs. State of Maharashtra & Ors.
reported in (2009) 3 SCC 789, para -10 of which reads as under:-
"10. It needs no reiteration that the FIR is not expected to be
an encyclopædia. As rightly contended by learned counsel for
the appellant whether the accused belongs to Scheduled Caste
or Scheduled Tribe can be gone into when the matter is being
investigated. It is to be noted that under Section 23(1) of the
Act, the Scheduled Castes and Scheduled Tribes (Prevention
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of Atrocities) Rules, 1995 (in short "the Rules") have been
framed."
That F.I.R. is not expected to be an encyclopedia, in the
facts of that case where the offence involved were punishable
under the penal provisions of Scheduled Castes and Scheduled
Tribes (Prevention of Atrocities) Act was alleged and for which
the First Information Report was instituted without mentioning
whether the accused persons belongs to Scheduled Castes and
Scheduled Tribes, the Hon'ble Supreme Court of India held that
for not mentioning the same, the F.I.R. cannot be quashed and
submitted that as the investigation of the cases are going on and
there is every likelihood of the petitioner having committed the
cognizable offence also punishable under other penal provisions
of the law apart from the offences in respect of which each of such
First Information Reports has been registered will be found out
during the investigation, hence at this nascent stage, the First
Information Reports of each of such cases and the entire criminal
proceedings ought not to be quashed and set aside.
16. Relying upon the Judgment of Hon'ble Supreme Court of
India, in the case of Neeharika Infrastructure Pvt. Ltd. Vs. State
of Maharashtra & Ors., reported in (2021) SCC Online SC 315,
the relevant portion of paragraph no.80 of which reads as under:-
80. In view of the above and for the reasons stated above, our final
conclusions on the principal/core issue, whether the High Court
would be justified in passing an interim order of stay of
investigation and/or "no coercive steps to be adopted", during the
pendency of the quashing petition under Section 482 Cr. P.C. and/or
under Article 226 of the Constitution of India and in what
circumstances and whether the High Court would be justified in
passing the order of not to arrest the accused or "no coercive steps to
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be adopted" during the investigation or till the final
report/chargesheet is filed under Section 173 Cr. P.C., while
dismissing/disposing of/not entertaining/not quashing the criminal
proceedings/complaint/FIR in exercise of powers under Section 482
Cr. P.C. and/or under Article 226 of the Constitution of India, our
final conclusions are as under:
i) Police has the statutory right and duty under the relevant
provisions of the Code of Criminal Procedure contained in
Chapter XIV of the Code to investigate into a cognizable
offence;
ii) Courts would not thwart any investigation into the
cognizable offences;
iii) It is only in cases where no cognizable offence or offence
of any kind is disclosed in the first information report that
the Court will not permit an investigation to go on;
iv) The power of quashing should be exercised sparingly with
circumspection, as it has been observed, in the 'rarest of rare
cases (not to be confused with the formation in the context of
death penalty).
v) While examining an FIR/complaint, quashing of which is
sought, the court cannot embark upon an enquiry as to the
reliability or genuineness or otherwise of the allegations
made in the FIR/complaint;
vi) Criminal proceedings ought not to be scuttled at the
initial stage;
vii) Quashing of a complaint/FIR should be an exception
rather than an ordinary rule;
vii) xxxxx
ix) xxxxx
x) xxxxx
xxxxxxx
xviii) xxxxx
It is submitted by the learned G.A.-III that police has a
right under Chapter XIV of Code to investigate into a cognizable
offence and the court would not thwart any investigation into the
cognizable offences. It is then submitted that only in cases where
no cognizable offence or offence of any kind is disclosed in the
first information report that court will not permit an investigation
to go on. It is then submitted that the power of quashing should
be sparingly exercised with circumspection in the rarest of rare
cases and this criminal proceeding ought not to be scuttled at the
initial stage and the quashing of a complaint/FIR should be an
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exception rather than an ordinary rule. Hence, it is submitted that
as this case does not come under rarest of rare cases, there is no
justifiable reason to exercise the exceptional power of quashing
the F.I.R.
17. It is then submitted by the learned G.A.-III, drawing
attention of this Court to the supplementary affidavit that in
respect of the offence for which Madhupur P.S. Case No. 119 of
2021 has been registered, the attached twitter posting by the
petitioner shows that he assembled with so many persons in
violation of the order promulgated by the Chief Secretary of the
State of Jharkhand prohibiting assembling of five or more persons
at a public place because of the COVID -19 Pandemic. Hence, it is
submitted that there is specific allegation against the petitioner of
having committed other cognizable offences also. Therefore, there
is no rhyme or reason to quash the F.I.R. or the criminal
proceeding of Madhupur P.S. Case No. 119 of 2021. Hence, it is
submitted that these criminal miscellaneous petitions being
without any merit be dismissed.
18. Having heard the submissions made at the Bar and after
going through the materials in the record, it is pertinent to refer to
Section 188 of the Indian Penal Code which reads as under:-
188. Disobedience to order duly promulgated by public servant.--
Whoever, knowing that, by an order promulgated by a public servant
lawfully empowered to promulgate such order, he is directed to abstain from
a certain act, or to take certain order with certain property in his possession
or under his management, disobeys such direction, shall, if such
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disobedience causes or tends to cause obstruction, annoyance or injury, or
risk of obstruction, annoyance or injury, to any persons lawfully employed,
be punished with simple imprisonment for a term which may extend to one
month or with fine which may extend to two hundred rupees, or with both:
and if such disobedience causes or tends to cause danger to human life,
health or safety, or causes or tends to cause a riot or affray, shall be punished
with imprisonment of either description for a term which may extend to six
months, or with fine which may extend to one thousand rupees, or with
both.
Explanation.--It is not necessary that the offender should intend to
produce harm, or contemplate his disobedience as likely to produce harm. It
is sufficient that he knows of the order which he disobeys, and that his
disobedience produces, or is likely to produce, harm.
The essential ingredients of the offences punishable under
Section 188 of the Indian Penal Code are as follows:-
(i) There was promulgation of an order;
(ii) Such promulgation was made by a public servant;
(iii) Public servant was legally empowered to make the
promulgation;
(iv) Promulgation directed not to do certain things or to
take certain orders in connection with certain
property in his possession or management;
(v) Accused knew of the promulgation;
(vi) Accused disobeyed it;
(vii) Such disobedience caused or intended to cause
obstruction, annoyance, injury or risk of the same to
a person lawfully employed or caused or tender to
cause danger to human life, health or safety, or
caused or tender to cause riot or affray.
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19. Now coming to the facts of the case, in none of the F.I.Rs.,
though all the four F.I.Rs. were instituted by different public
servants and administrative officers of considerable standing;
there is any reference to any promulgation of any order which has
been violated by the petitioner. The allegations made in the F.I.Rs,
as already indicated above in the foregoing paragraphs of the
Judgment itself goes to show that the basis for allegation of the
offence punishable under Section 188 of the Cr.P.C. was the twits
made in twitter handle of the petitioner; who is undisputedly an
Hon'ble Member of the Parliament at the relevant point of time.
There is no allegation that there was promulgation of any order
for making posting in any twitter.
20. So far as the offence for which Madhupur P.S. Case No.
119 of 2021 has been registered is concerned, the supplementary
counter affidavit filed by the State shows that at the relevant point
of time, the Chief Secretary of the State of Jharkhand promulgated
an order inter-alia prohibiting congregation of not more than five
persons at any public place from 08.04.2021 to till 30.04.2021.
There is no allegation in the F.I.R. of Madhupur P.S. Case No. 119
of 2021 that the photocopy of the alleged twit made by the
petitioner in his twitter handle shows that the petitioner was
present in any congregation at any public place where more than
five persons congregated. In the absence of the same, the plain
reading of the F.I.R. do not show commission of the offence
punishable under Section 188 of the Indian Penal Code either.
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Though the investigation of the case is going on for a considerable
period of time and the respondent-State has taken several times
and ultimately filed a supplementary counter affidavit but there is
no allegation made in the supplementary counter affidavit to
allege commission of any offence by the petitioner so far.
21. It is needless to mention that Section 195 of the Code of
Criminal Procedure envisages filing of a complaint in writing by
the public servant concerned, the contempt of whose lawful
authority has been committed or some other public servant to
whom he is administratively subordinate.
22. It is pertinent to mention here that the observation was made by
the Hon'ble Supreme Court of India in the case of State of Punjab
Vs. Raj Singh and Another, (supra) in respect of the offences
punishable under Section 419/420/467/468 of the Indian Penal
Code which were the independent penal offences and there is no
bar in respect of such offences for taking cognizance by any Court,
as is applicable to the offence punishable under Section 188 of the
Indian Penal Code in respect of which offence, Section 195 of the
Code of Criminal Procedure puts the restriction that no Court
shall take cognizance inter-alia of the offence punishable under
Section 188 of the Indian Penal Code or of abetment to commit
such an offence inter-alia except on the complaint in writing by the
public servant concerned or of some other public servant to whom
he is administratively subordinate. Hence, this Court is of the
considered view that the observations made by the Hon'ble
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Supreme Court of India in the case of State of Punjab Vs. Raj
Singh and Another (supra) in respect of the offences punishable
under Section 419/420/467/468 of the Indian Penal Code cannot
be used in respect of the offence punishable punishable under
Section 188 of the Indian Penal Code; in view of the specific bar
for taking cognizance of the offence punishable under Section 188
of the Indian Penal Code, in Section 195 of the Code of Criminal
Procedure.
23. Now going by the submissions made by the learned G.A.-
III, the public servant concerned, whose order promulgated has
been disobeyed, is the Chief Secretary of the State of Jharkhand.
Neither the Chief Secretary nor anybody to whom the Chief
Secretary of State of Jharkhand is administratively subordinate
has made any complaint. There is no allegation that the petitioner
knew the promulgation of any order by the Chief Secretary nor is
there any allegation that he disobeyed the same. Hence, under
such circumstances, this Court has no hesitation in holding that
the allegations in the F.I.Rs. made in the four cases being Devipur
P.S. Case No. 179 of 2021, Chitra P.S. Case No. 59 of 2021,
Madhupur P.S. Case No. 119 of 2021 & Deoghar (Town) P.S. Case
No. 527 of 2021 are considered to be true in their entirety, still no
offence punishable under Section 188 of the Indian Penal Code is
made out.
24. So far as the offence punishable under Section 171 C,
which is involved in Chitra P.S. Case No. 59 of 2021 is concerned,
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the same is no doubt is a non-cognizable offence. The same
envisages punishment for the accused voluntarily interfering or
attempt to interfere with the free electoral right. After going
through the materials in the record, this Court do finds that there
is no allegation against the petitioner of committing any act which
could even remotely have resulted in voluntarily interfering or
attempt to interfere with the free exercise of any electoral right.
Hence, this Court is of the considered view that even if the
allegations made in the First Information Report of Chitra P.S.
Case No. 59 of 2021 are considered to be true in its entirety, still
the offence punishable under Section 171C of the Indian Penal
Code is not made out.
25. So far as the offence punishable under Section 171F of the
Indian Penal Code is concerned, the same envisages punishment
for a person who commits undue influence or personation at an
election.
26. Now coming to the allegations made in the F.I.Rs. being
Devipur P.S. Case No. 179 of 2021, Chitra P.S. Case No. 59 of 2021,
Madhupur P.S. Case No. 119 of 2021 & Deoghar (Town) P.S. Case
No. 527 of 2021 which FIRs have been registered inter alia
involving the offence punishable under section 171F of the Indian
Penal Code, are considered to be true in their entirety, still the
offence of commission of undue influence or personation is not
made out against the petitioner. Hence this court has no hesitation
in holding that the offence under section 171F of the Indian Penal
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Code and not made out against the petitioner in the said three
cases.
27. So far as the offence punishable under Section 171G is
concerned, the same envisages punishment for false statement in
connection with an election and the ingredients of the said offence
are:-
(i) An election was impending;
(ii) The accused made a public statement relating to the
personal character and conduct of the candidate;
(iii) Such statement was false to the knowledge to the
accused or accused believed that it was false or that
he did not believe it to be true;
(iv) The accused published the statement with intent to
affect his result of the election.
28. Now coming to the allegations made in the F.I.Rs. of
Devipur P.S. Case No. 179 of 2021 & Chitra P.S. Case No. 59 of
2021, which FIRs have been registered inter alia involving the
offence punishable under section 171G of the Indian Penal Code,
are concerned, there is no allegation against the petitioner that he
ever published any statement relating to personal character or
conduct of any candidate of any impending election. Hence, in the
absence of the same, this Court has no hesitation in holding that
even if the allegations made in the F.I.Rs. of Devipur P.S. Case No.
179 of 2021 & Chitra P.S. Case No. 59 of 2021 are treated to be true
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in their entirety, still the offence punishable under Section 171G of
the Indian Penal Code is not made out against the petitioner.
29. So far as the offences punishable under Sections 504 and
506 of the Indian Penal Code are concerned, it is a settled principle
of law as has been held by the Hon'ble Supreme Court of India in
the case of Vikram Johar vs. State of Uttar Pradesh & Anr.
reported in (2019) 14 SCC 207, paragraph nos. 24 and 25 of which
reads as under :-
"24. Now, we revert back to the allegations in the complaint
against the appellant. The allegation is that the appellant
with two or three other unknown persons, one of whom was
holding a revolver, came to the complainant's house and
abused him in filthy language and attempted to assault him
and when some neighbours arrived there the appellant and
the other persons accompanying him fled the spot. The above
allegation taking on its face value does not satisfy the
ingredients of Sections 504 and 506 as has been enumerated
by this Court in the above two judgments. The intentional
insult must be of such a degree that should provoke a person
to break the public peace or to commit any other offence. The
mere allegation that the appellant came and abused the
complainant does not satisfy the ingredients as laid down in
para 13 of the judgment of this Court in Fiona Shrikhande
[Fiona Shrikhande v. State of Maharashtra, (2013) 14 SCC
44 : (2014) 1 SCC (Cri) 715] .
25. Now, reverting back to Section 506, which is offence of
criminal intimidation, the principles laid down by Fiona
Shrikhande [Fiona Shrikhande v. State of Maharashtra,
(2013) 14 SCC 44 : (2014) 1 SCC (Cri) 715] has also to be
applied when question of finding out as to whether the
ingredients of offence are made or not. Here, the only
allegation is that the appellant abused the complainant. For
proving an offence under Section 506 IPC, what are the
ingredients which have to be proved by the prosecution?
Ratanlal & Dhirajlal on Law of Crimes, 27th Edn. with
regard to proof of offence states the following:
"... The prosecution must prove:
(i) That the accused threatened some person.
(ii) That such threat consisted of some injury to his
person, reputation or property; or to the person,
reputation or property of someone in whom he was
interested;
(iii) That he did so with intent to cause alarm to that
person; or to cause that person to do any act which he
was not legally bound to do, or omit to do any act
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which he was legally entitled to do as a means of
avoiding the execution of such threat."
A plain reading of the allegations in the complaint does not
satisfy all the ingredients as noticed above." (Emphasis
supplied)
This court after going through the materials in the record
and the allegations made in the F.I.R. of Chitra P.S. Case No. 59 of
2021, which FIR inter alia involves the commission of the offence
punishable under section 504 of the Indian Penal Code, this Court
do not find that there is any allegation against the petitioner of
intentionally insulting the informant or anyone else nor there is
any allegation against the petitioner of giving any provocation to
informant or anyone else intending or knowing it to be likely that
such provocation would cause him to break public peace and in
the absence of any materials regarding these essential ingredients,
the offences punishable under Section 504 of the Indian Penal
Code which is a non-cognizable offence is not made out, even if
the allegations made in the F.I.R. of Chitra P.S. Case No. 59 of 2021
are considered to be true in its entirety.
30. So far as the offence punishable under Section 506 of the
Indian Penal Code is concerned, even after going through the
contents of the F.I.Rs. of Devipur P.S. Case No. 179 of 2021,
Madhupur P.S. Case No. 119 of 2021 & Deoghar (Town) P.S. Case
No. 527 of 2021, which FIRs inter alia involves the offence
punishable under section 506 of the Indian Penal Code is
concerned, this Court do not find that there is any allegation
against the petitioner that he threatened any person or that he did
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so with intent to cause alarm to the victim or to cause the victim to
do any act which he was not legally bound to do or omit to do any
act which he was legally entitled to do in the means of avoiding
execution of such threat. Under such circumstances, the offence
punishable under Section 506 of the Indian Penal Code is also not
made out against the petitioner.
31. So far as the offence punishable under Section 505(1) of
the Indian Penal Code is concerned, the same provides for
punishment for publication or circulation of any statement, rumor
or report with intent to cause, or which is likely to cause, fear or
alarm to the public or to any section of the public, or to any
section of the public whereby any person may be induced to
commit an offence against the State or against the public
tranquility or with intent to incite, or which is likely to incite, any
class or community or persons to commit any offence against any
other class or community but coming to the facts of the case, there
is no allegation against the petitioner of having made any
statement with intent to cause or which is likely to cause fear or
alarm to public or to likely to incite any class or community or
persons to commit any offence against other class or community.
Hence, even if the allegations made in the F.I.R. of Chitra P.S. Case
No. 59 of 2021 which FIR inter alia involves the offence punishable
under section 505 (1) of the Indian Penal Code, is considered to be
true in its entirety, still in the considered opinion of this Court, the
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offence punishable under Section 505(1) of the Indian Penal Code
is not made out against the petitioner.
32. So far as the offence punishable under Section 182 of the
Indian Penal Code is concerned, the same envisages the offence
for false information with intent to cause public servant to use his
lawful power to the injury of another person. The essential
ingredients of Section 182 if the Indian Penal Code which is a non-
cognizable offence is that:-
(i) The accused gave some information to a public
servant;
(ii) Such information was false.
(iii) The accused knew or had reasons to believe that
such information was false &
(iv) He did so intentionally to cause the public servant
to act upon such information which the public
servant would not have acted upon to the injury or
annoyance of any person.
33. Now coming to the allegations made in the F.I.R. of Chitra
P.S. Case No. 59 of 2021, which FIR inter alia involves the offence
punishable under section 182 of the Indian Penal Code, this Court
finds that there is no allegation against the petitioner of giving any
information to any public servant which the petitioner knew or
had reason to believe that such information was false. In the
absence of such essential ingredients, the offence punishable
under Section 182 of the Indian Penal Code is not made out;
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against the petitioner, even if the contents of the FIR is considered
to be true in its entirety.
34. So far as the offence punishable under Section 116 of the
Indian Penal Code is concerned, the same intends punishment for
a person who abets an offence punishable for imprisonment. Now
coming to the allegations made in the F.I.R. of Madhupur P.S.
Case No. 119 of 2021 which FIR inter alia involves the offence
punishable under section 116 of the Indian Penal Code, this Court
finds that there is no allegation against the petitioner of abetting
the commission of any offence punishable with imprisonment.
35. Under such circumstances, this Court is of the considered
view that even if the allegations made in the F.I.R. of Madhupur
P.S. Case No. 119 of 2021 is considered to be true in its entirety,
still the offence punishable under Section 116 of the Indian Penal
Code is not made out against the petitioner.
36. In view of the discussions made above, since the offences
alleged in the F.I.Rs. of Devipur P.S. Case No. 179 of 2021, Chitra
P.S. Case No. 59 of 2021, Madhupur P.S. Case No. 119 of 2021 &
Deoghar (Town) P.S. Case No. 527 of 2021 are not made out
against the petitioner, even if the contents to the same are
considered to be true in their entirety. Hence, this Court is of the
considered view that the continuation of the criminal proceedings
against the petitioner will amount to abuse of process of law and
these are the fit cases; whereas such First Information Reports be
quashed.
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37. Accordingly, the F.I.Rs. of Devipur P.S. Case No. 179 of
2021, Chitra P.S. Case No. 59 of 2021, Madhupur P.S. Case No. 119
of 2021 & Deoghar (Town) P.S. Case No. 527 of 2021 are quashed
and set aside.
38. In the result, these criminal miscellaneous petitions are
allowed.
(Anil Kumar Choudhary, J.)
High Court of Jharkhand, Ranchi
Dated the 12th January, 2024
AFR/Sonu-Gunjan/-
