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2017 Supreme(Pat) 784
IN THE HIGH COURT OF JUDICATURE AT PATNA
ASHWANI KUMAR SINGH, J.
Prakash Jha son of Shri Tej Nath Jha - Petitioner
Versus
The State of Bihar & Ors. - Opposite Parties
Criminal Miscellaneous No. 43543 of 2010
Decided On : 31-07-2017
Advocate Appeared:
For the Petitioner: Mr. Y.V. Giri, Mr. Tuhin Shankar, Vipula Kanoria, Mr. Gopal Kumar
For the Opposite Parties : Mr. Parmeshwar Mehta
Headnote:
(A) Indian Penal Code, 1860 – Sections 188, 171-F and 171-H/34 – Representation of the People Act, 1951 – Section 123 – Criminal Procedure Code, 1973 – Sections 195 and 482 – Bribing of voters – Recovery of huge amount of money from house of petitioner – Mere recovery of amount without there being any assertion that same was being used for undue influence or personation at election and that candidate had not given any general or special authority in writing or that accused had kept amount for promoting or procuring election of candidate, ingredients of offences under Sections 171-F and 171-H would not be attracted – Neither FIR nor investigation disclose any details essential to constitute offence under Section 188 of IPC – FIR and charge-sheet make no mention of what order had been promulgated, by what means was promulgation of this order intimated/informed to petitioner or public for that matter – There is also no mention how any alleged disobedience of order resulted in obstruction, annoyance or injury or risk thereof or caused danger to human life, health or safety or a riot or affray – There is an absolute bar to court for taking cognizance of a case registered under Section 188 of IPC except in manner provided under Section 195 of Cr.P.C. – Complaint does not include a police report – Registration of case by police for offence under Section 188 of IPC was illegal and on the basis of such FIR, investigation conducted by police and charge-sheet filed before court was wholly illegal and without jurisdiction – Once, it is held that registration of FIR under Section 188 of IPC was not permissible in law, registration of FIR for other offences which are non-cognizable and investigation of same without permission of Jurisdictional Magistrate was not permissible in view of express bar created under sub-section (2) of Section 155 of Cr.P.C. – Allegations made in FIR, even if taken at their face value and accepted in their entirety, do not attract ingredients of offences alleged – Criminal prosecution quashed. (Paras 13, 16, 17, 21, 26, 27, 30 and 31)
(B) Representation of the People Act, 1951 – Section 123 – Criminal Procedure Code, 1973 – Section 173(2) – Corrupt practice – It is not an offence for which determination can be made by a criminal court – Corrupt practices defined under Section 123 of R.P. Act can be agitated in an election petition filed before court of competent jurisdiction and, if proved, same may lead to disqualification of a candidate who is elected – On proof of such charge, a candidate may be disqualified even for future election – However, police had no jurisdiction to investigate into such charge – Similarly, court exercising criminal jurisdiction could not have taken cognizance of such offence on the basis of police report submitted under Section 173(2) of Cr.P.C. (Para 29)
Heard Mr. Y.V. Giri, learned Senior Advocate for the petitioner and Mr. Parmeshwar Mehta, learned Additional Public Prosecutor for the State.
2. The present application under Section 482 of the Code of Criminal Procedure (for short “Cr.P.C.”) has been filed for quashing the order dated 08.04.2010 passed by the learned Additional Chief Judicial Magistrate, Bettiah by which cognizance has been taken of the offences punishable under Sections 188, 171-F, 171-H/34 of the Indian Penal Code (for short “IPC”) and Section 123 of the Representation of the People Act (for short “R.P. Act”) in Bettiah Town P.S. Case No.94 of 2009 registered on 22.04.2009.
3. Brief facts leading to filing of the first information report are that the petitioner was a candidate contesting Lok Sabha Election, 2009 on Lok Janshakti Party symbol from West Champaran constituency. The opposite party no.4, Sub-divisional Officer, Bettiah Sadar has alleged in his written report submitted to the Officer-in-charge of the police station that he received secret information in respect of bribing voters by the petitioner in the West Champaran Lok Sabha constituency. Thereafter, he himself together with the police party raided rented house of the petitioner situated at Supriya Road at 11:45 p.m. on 24.04.2009. In the said raid, the police party found altogether 38 persons present inside the house. An amount to the tune of Rs.10,25,350/- kept in two bags in one of the rooms of the said premises was recovered. On inquiry, no satisfactory answer regarding possession of huge amount was given by the occupants of the premises. It is stated that a seizure memo was prepared and the amount was deposited with the Officer-in-charge of the Bettiah Town Police Station. It is also stated that at the time of raid, the petitioner was not present in the said premises.
4. On the basis of the aforesaid allegation, a case was registered against the petitioner and 38 others, who were found present inside the house.
5. On completion of investigation, the police submitted charge-sheet against the petitioner and others named in the First Information Report (for short “FIR”). After going through the materials available on the record, the learned Additional Chief Judicial Magistrate, West Champaran, Bettiah vide order dated 08.04.2010 took cognizance of the offences punishable under Sections 188, 171-F, 171-H/34 of the IPC and Section 123 of the R.P. Act against the accused persons, who were sent up by the police in their report under Section 173(2) of the Cr.P.C. and summoned them to face trial. The aforesaid order dated 08.04.2010 is under challenge in the present application.
6. The main grievances urged by Mr. Giri, learned Senior Advocate for the petitioner are that there was absolutely no material during investigation to even remotely corroborate the allegations made by the police in the FIR and the allegations made in the FIR against the petitioner with regard to distribution of money to voters remained presumptuous throughout the investigation, but the police with total vindictiveness, as against the petitioner, filed charge-sheet dated 03.09.2010 against the petitioner and 38 more persons. He has contended that there has been no independent evidence whatsoever found with regard to allegation of the distribution of money to voters to influence them and there was no occasion at all to lodge the FIR in question. According to Mr. Giri, the charge-sheet also is based only on surmises and conjectures and none of the ingredients of the offences under the IPC and R.P. Act are attracted in the present case. He has contended that Section 188 of the Indian Penal Code is an offence covered under Section 195 of the Cr.P.C. according to which the Court cannot take cognizance unless a public servant files a private complaint under Section 200 of the Cr. P.C. He has contended that the offences under Section 171-F and 171-H are non-cognizable offences and the police cannot investigate such offences w
