Madras High Court
Senthilvel vs The Inspector Of Police on 16 November, 2021
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 16.11.2021
CORAM:
THE HON'BLE MR JUSTICE G.ILANGOVAN
Crl.O.P.(MD)No.497 of 2019
and
Crl.MP(MD)Nos.241 and 242 of 2019
1.Senthilvel
2.Mary Selvam
3.Ayyanar
4.Selvam
5.Kalidoss : Petitioners/A3 to A6 and A8
Vs.
1.The Inspector of Police,
Town Police Station,
Srivilliputhur,
Virudhunagar District.
(FIR No.225/2014) : 1st Respondent/Complainant
2.Chandra Prakash : 2nd Respondent/Informant
Prayer: Criminal Original Petition is filed under Section 482
Cr.P.C., to call for the records pertaining to STC No.1056 of 2014
on the file of the Judicial Magistrate Court No.II, Srivilliputhur,
Virudhu Nagar District and quash the same as illegal.
For Petitioners : Mr.r.Murugappan
For 1st Respondent : Mr.E.Antony Sahaya Prabahar
Additional Public Prosecutor
For 2nd Respondent : Died
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2
ORDER
This petition is filed seeking quashment of the case in STC
No.1056 of 2014 pending on the file of the Judicial Magistrate
No.II, Srivilliputhur @ Virudhu Nagar District.
2.The case of the prosecution in brief:-
The de-fcto complainant, who was working as Tashildar,
Srivilliputhur, on 20.04.2014 lodged a complaint with the first
respondent police with the following allegations:-
On the eve of Parliamentary Election, he was working in the
squad in the routine inspection and at that time, near Madavar
Campus Bus Stop, election campaign has been held by the accused
persons along with others and about to start a procession along
with the alliance party. So the de-facto complainant informed that
the petitioners had not obtained any prior permission from the
Election Commission for procession. That was not considered and
this was objected by him. So they started gathering in that place
for taking out the procession. On the basis of the complaint given
by the 2nd respondent, a case in Crime No.225 of 2014 was
registered for the offence punishable under sections 143, 341 IPC
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and section 123(7) of the Representation of People Act, 1951. So it
has also taken cognizance in STC No.1056 of 2014 on the file of the
Judicial Magistrate Court No.II, Srivilliputhur.
3.Challenging the same, this petition came to be filed on the
main ground that none of the allegations mentioned in the final
report attract any of the ingredients of the offences against the
petitioners.
4.Heard both sides.
5.It is a matter of election issue that took place on
20.04.2014. According to the prosecution, these petitioners along
with others, started gathering in the place of occurrence, for taking
out the procession and for that purpose, they did not obtain any
prior permission from the election authorities.
6.No doubt, reading of the FIR and the statement of
witnesses shows that they gathered in the place of occurrence with
an intention to make a procession of two wheeler. The statement of
the 2nd respondent also shows that his further enquiry reveals that
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some of the persons gathered in that place for listening to the
election speech that was made by one Thirumal Kumar and those
persons have also been wrongly included in his complaint. So, who
actually involved in the above said gathering is not clear on record.
7.It is further seen that without verifying proper facts and the
vehicles that have been found in the place of occurrence with the
party flags, has been seized. So mere gathering in the place of
occurrence may not attract section 123 (7) of the Representation of
People Act, 1951. As per the statement given by the 2nd respondent
official, it is seen that the procession did not start and when they
are about to start the procession, that has been prevented by the
authorities.
8.Section 123(7) of The Representation of the People Act,
1951 reads as follows:-
“(7) The obtaining or procuring or abetting
or attempting to obtain or procure by a candidate
or his agent or, by any other person 11[with the
consent of a candidate or his election agent], any
assistance (other than the giving of vote) for the
furtherance of the prospects of that candidate’s
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election, from any person in the service of the
Government and belonging to any of the following
classes, namely:—
(a) gazetted officers;
(b) stipendiary judges and magistrates;
(c) members of the armed forces of the Union;
(d) members of the police forces;
(e) excise officers; 13[(f) revenue officers other
than village revenue officers known as
lambardars, malguzars, patels, deshmukhs or by
any other name, whose duty is to collect land
revenue and who are remunerated by a share of,
or commission on, the amount of land revenue
collected by them but who do not discharge any
police functions; and]
(g) such other class of persons in the service of
the Government as may be prescribed:
14[Provided that where any person, in the service
of the Government and belonging to any of the
classes aforesaid, in the discharge or purported
discharge of his official duty, makes any
arrangements or provides any facilities or does
any other act or thing, for, to, or in relation to, any
candidate or his agent or any other person acting
with the consent of the candidate or his election
agent (whether by reason of the office held by the
candidate or for any other reason), such
arrangements, facilities or act or thing shall not
be deemed to be assistance for the furtherance of
the prospects of that candidate’s election.] 15[(8)
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Booth capturing by a candidate or his agent or
other person.] Explanation.—(1) In this section the
expression “agent” includes an election agent, a
polling agent and any person who is held to have
acted as an agent in connection with the election
with the consent of the candidate.”
9.So reading of the above provision shows that the
ingredients are not attracted against the occurrence. So mere
assembling of persons for taking out procession will not attract the
ingredients of section 123(7) of the Representation of People Act
1951, which has been classified as a bribe group. If at all only
section 188 IPC can be attracted even though registering the case
under section 188 IPC, it is non cognizance offence as per the
judgment of Jeevanantham's case. So permission ought to have
obtained from the competent Judicial Magistrate to register the
case and investigate the matter. So the offence under section 188
IPC is not attracted and it cannot be proceeded against the accused
persons. More over, the occurrence is of the year 2014, which said
to have been taken place on the eve of Parliamentary Election.
Now seven years lapsed, nothing moved before the trial court. So
continuation of the proceedings against the petitioners will amount
to abuse of process of law and court.
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10.In view of the above, this criminal original petition stands
allowed. The case in STC No.1056 of 2014 pending on the file of
the Judicial Magistrate No.II, Srivilliputhur, is hereby quashed as
against the petitioners. Consequently, connected Miscellaneous
Petitions are closed.
16.11.2021
Index:Yes/No
Internet:Yes/No
er
Note :
In view of the present lock
down owing to COVID-19
pandemic, a web copy of
the order may be utilized
for official purposes, but,
ensuring that the copy of
the order that is presented
is the correct copy, shall
be the responsibility of the
advocate/litigant
concerned.
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G.ILANGOVAN, J
er
1.The Judicial Magistrate No.II,
Srivilliputhur,
Virudhu Nagar District.
2.The Inspector of Police,
Town Police Station,
Srivilliputhur,
Virudhunagar District.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
Crl.OP(MD)No.497 of 2019
16.11.2021
https://www.mhc.tn.gov.in/judis
