Telangana High Court

Sri.Etala Rajender vs The State Of Telangana, on 18 November, 2024

Author: K. Lakshman

Bench: K. Lakshman

           HON'BLE SRI JUSTICE K. LAKSHMAN

            CRIMINAL PETITION No.868 OF 2024

ORAL ORDER:

Heard Mr. J. Prabhakar, learned Senior Counsel representing

Mr. Gummalla Bhasker Reddy, learned counsel for the petitioner

and Mr. Syed Yasar Mamoon, learned Additional Public

Prosecutor appearing on behalf of respondent No.1 - State.

2. This Criminal Petition is filed under Section - 482 of the

Code of Criminal Procedure, 1973, to quash the proceedings in

C.C. No.238 of 2022 pending on the file of Special Judicial

Magistrate of First Class for Excise Cases, Hyderabad.

3. The petitioner herein is arraigned as sole accused in the

said case. The offences alleged against him are under Section -

188 of IPC and Section - 126 of the Representation of People Act,

1951 (for short 'R.P. Act').

4. Respondent No.2 lodged a complaint dated 30.10.2021

with Kamalapur Police Station stating that on 30.10.2021 while

their Election Flying Surveillance Team-5 (FST) were moving in

Vangapally Village, the BJP Party contestant i.e., petitioner herein

conducted a press meet near OHSR Tank in the village wherein

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some other persons raised slogans saying 'Jai Etela and Jai Etela

Rajender' and thereby the petitioner herein and others violated the

Election Code. Therefore, he requested the police to take action

against the petitioner herein.

5. On receipt of the said complaint, the police of Kamalapur

registered a case in Crime No.217 of 2021 for the aforesaid

offences. On completion of investigation, Investigating Officer

laid the charge sheet against the petitioner and the same was taken

on file vide C.C. No.238 of 2022 for the aforesaid offences.

6. During the course of investigation, the Investigating

Officer recorded statement of respondent No.2 as LW.1, two (02)

police constables as LWs.2 and 3. LWs.4 and 5 are panch

witnesses, while LWs.6 and 7 are the Investigating Officers.

7. Perusal of statements of LWs.1 to 3 recorded under

Section - 161 of Cr.P.C. would reveal that they all in one voice

stated that on 30.10.2021 the petitioner conducted press-meet near

at OHSR Tank in Vangapalli Village and, thus, he has violated the

Election Code. They have also requested the Investigating Officer

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to take action against the persons who co-operated with the

accused for conducting the said press-meet.

8. It is relevant to refer to Section - 188 of IPC and Section

126 of R.P. Act, and the same are extracted hereunder:

"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 disobedience causes or tends to cause obstruction, annoyance or injury, or risk of obstruction, annoyance or injury, to any person lawfully employed, be punished with simple impris- onment 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 trends 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,

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and that his disobedience produces, or is likely to produce, harm.

Illustration An order is promulgated by a public servant lawfully empowered to promulgate such order, directing that a religious procession shall not pass down a certain street. A knowingly disobeys the order, and thereby causes danger of riot. A has committed the offence defined in this section."

"126. Prohibition of public meetings during period of forty-eight hours ending with hour fixed for conclusion of poll.--

(1) No person shall--

(a) convene, hold, attend, join or address any public meeting or procession in connection with an election; or

(b) display to the public any election matter by means of cinematograph, television or other similar apparatus; or

(c) propagate any election matter to the public by holding, or by arranging the holding of, any musical concert or any theatrical performance or any other entertainment or amusement with a view to attracting the members of the public thereto, in any polling area during the period of forty-eight hours ending with the fixed for the conclusion of the poll for any election in the polling area.

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(2) Any person who contravenes the provisions of sub-section (1) shall be punishable with imprisonment for a term which may extend to two years, or with fine, or with both.

(3) In this section, the expression "election matter" means any matter intended or calculated to influence or affect the result of an election."

9. In N.T. Rama Rao v. The State of A.P., rep. by Public

Prosecutor 1 while dealing with the offences under Sections - 188

and 283 of IPC, the learned Single Judge held as under:

"5) Even if the allegation that the petitioner conducted public meetings at three road junctions contrary to the permission accorded for conducting of a public meeting only at one specified place is true, such a direction under Section 30 of the Police Act, 1861 could have been given only by the Superintendent or the Assistant Superintendent of Police of the District but not by any of their subordinates. If such a permission is granted under Section 30 of the Police Act, 1861 and is violated, Section 195 (1) (a) of Code of Criminal Procedure mandates that the complaint in this regard has to be made by the public servant concerned or some other person to whom such a public servant is administratively subordinate to

. Criminal Petition No.5323 of 2009, decided on 17.09.2009

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enable any Court to take cognizance of an offence under Section 188 of Code of Criminal Procedure. In the present case, the charge sheet was filed by the Sub Inspector of Police, who could not have been the authority to grant permission for the public meeting and therefore, the complaint/charge sheet is in violation of the mandatory provision of Section 195(1)(a) of Code of Criminal Procedure.

6) That apart, the offence alleged to have been committed under Section 283 of the Indian Penal Code by the petitioners and others is obviously in consequence to the alleged offence under Section 188 of Indian Penal Code and is not an independent of the same.

Even otherwise, the conduct of public meeting at three road junctions or obstruction to the traffic could not have been considered as causing any danger or injury to any person. In so far as the obstruction in any public way is concerned, which can also be covered by Section 283 of the Indian Penal Code, the charge sheet cites only one witness to speak about the traffic jam caused by the road show. But, when the conduct of the public meeting at least at one place has been permitted and if the gathering for that public meeting resulted in any inconvenience by way of obstructing the traffic, the same cannot be considered to be

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with necessary guilty mens rea to construe the existence of an offence punishable under Indian Penal Code. Under the circumstances, none of the offences alleged can be said to have any reasonable basis and in any view, the complaint/charge sheet being in violation of Section 195 (1) (a) of Code of Criminal Procedure, has to fail.

7) As the complaint has failed due to its un- sustainability, the proceedings in their entirety have to fail, though the 1st accused alone approached this Court by way of this Criminal Petition."

10. In Thota Chandra Sekhar v. The State of Andhra

Pradesh, through S.H.O., P.S. Eluru Rural, West Godavari

District 2 relying on various judgments including N.T. Rama Rao1

and the guidelines laid down by the Hon'ble Supreme Court in

State of Haryana v. Bhajan Lal 3, more particularly, guideline

No.6, which says that where there is an express legal bar engrafted

in any of the provisions of the Code or the concerned Act (under

which a criminal proceeding is instituted) to the institution and

continuance of the proceedings and/or where there is a specific

. Criminal Petition No.15248 of 2016, decided on 26.10.2016

. (1992) Supp. 1 SCC 335

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provision in the Code or the concerned Act, providing efficacious

remedy to redress the grievance of the party, a learned Single

Judge of High Court of Judicature at Hyderabad for the States of

Telangana and Andhra Pradesh quashed the proceedings in the said

C.C. by exercising power under Section - 482 of Cr.P.C. It further

held that the proceedings shall not be continued due to technical

defect of obtaining prior permission under Section - 155 (2) of

Cr.P.C. and taking cognizance on the complaint filed by V.R.O.

and it is against the purport of Section - 195 (1) (a) of Cr.P.C.

11. Therefore, there should be an allegation that the

petitioner violated the orders issued either by the Election

Commission of India or State Election Commission or any Election

Authority not to convene any meeting. "Election Matter" means

any matter intended or calculated to influence or affect the result of

an election.

12. As discussed above, none of the witnesses including

LWs.1 to 3 spoke that the petitioner conducted press meet in

violation of the orders issued by the Election Commission of India

with regard to the election matter intending to influence or affect

the result of an election. In the charge sheet, there is reference to

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the petitioner and others, but the Investigating Officer did not

conduct investigation with regard to others. Charge sheet is filed

only against the petitioner and cognizance was also taken against

him. Contents of charge sheet including statements of LWs.1 to 3

lack the ingredients of Sections - 188 of IPC and 126 of the R.P.

Act.

13. In Bhajan Lal3, the Apex Court cautioned that power of

quashing should be exercised very sparingly and circumspection

and that too in the rarest of rear cases. While examining a

complaint, quashing of which is sought, Court cannot embark upon

an enquiry as to the reliability or genuineness or otherwise of the

allegations made in the FIR or in the complaint. The Apex Court

in the said judgment laid down certain guidelines/parameters for

exercise of powers under Section - 482 of Cr.P.C., which are as

under:

"(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

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(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

(4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

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(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or Act concerned, providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."

The said principle was reiterated by the Apex Court in catena of

decisions.

14. As discussed above, the contents of charge sheet and

statements of LWs.1 to 3 lack the ingredients of the offence under

Section - 126 of R.P. Act. Therefore, continuation of the

proceedings in the aforesaid C.C. is an abuse of process of law and,

therefore, the proceedings in C.C. No.238 of 2022 are liable to be

quashed against the petitioner.

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15. Learned Additional Public Prosecutor would further

contend that the trial Court dismissed the discharge application

filed by the petitioner vide Crl.M.P. No.1081 of 2023 on