JUDGMENT :

Heard learned counsel for the petitioners and learned counsel for the State.

2. This application under Articles 226 and 227 of the Constitution of India has been filed by the petitioners for quashing the First Information Report (for short ‘FIR’) of Dhaka P.S. Case No.147 of 2019 dated 12.05.2019 registered under Sections 130 and 133 of the Representation of the People Act, 1951 (for short ‘RP Act’ and Section 188 of the Indian Penal Code (for short ‘IPC’).

3. Mr. S.B.K. Mangalam, learned counsel appearing for the petitioners submitted that the allegations made in the FIR do not constitute any cognizable offence. In the absence of any cognizable offence having been committed, the police had no authority to institute an FIR. He submitted that the ingredients of the offence punishable under Section 130 of the RP Act are not attracted. There is no allegation that vehicle in question was being used for displaying any poster or banner within the distance of hundred meters of the polling station. He has submitted that similarly the offence punishable under Section 188 of the IPC is also not attracted. As per Section 195(1) of the Code of Criminal Procedure (for short ‘CrPC’) the Court cannot take cognizance under Section 188 of the IPC unless there is a complaint in writing of a public servant or other public servant to whom he is administratively subordinate whose order has been disobeyed. Lastly, he contended that in any view of the matter, a prosecution under Section 188 of the IPC can not be launched against any person by way of instituting an FIR. He has submitted that petitioner no.1 is the owner of the vehicle bearing Registration No. BR-01BG-0007 and petitioner no.2 is its driver. In support of his submission, he has placed reliance on the decisions of this Court in the matter of Parveen Amanullah vs. The State of Bihar [2017 (3) PLJR 101] and Dharmesh Prasad Verma vs. The State of Bihar [2017 (1) PLJR 401].

4. Ms. Divya Verma, learned counsel appearing on behalf of the State submitted that there is no illegality in the institution of the FIR. She contended that section 130 of the RP Act is a cognizable offence and its ingredients are clearly attracted in this case. She pleaded that as far as Section 188 of the IPC is concerned, the same is also a cognizable offence. The offence was committed on the date of election and it was known to all that on the date of election campaigning in any form was strictly prohibited. Since the vehicle in question was being used for displaying poster and banner of a political party, the offences under RP Act and the IPC are clearly attracted. She argued that for the disobedience of the duly promulgated order of the public servant, an FIR would be maintainable. She further contended that in view of Section 155(4) of the CrPC where a case relating to two or more offences of which at least one is cognizable, the offence would be deemed to be a cognizable offence notwithstanding that the other offences are non-cognizable.

5. I have heard learned counsel for the parties and carefully perused the record.

6. The FIR of Dhaka P.S. Case No.147 of 2019 has been registered on the basis of a written report dated 12.05.2019 submitted by the Block Development Officer, Dhaka, East Champaran to the Officer-in-charge, Dhaka, East Champaran.

7. In his written report, the informant has stated that he has received letter no.554 dated 12.05.2019 of the Assistant Returning Officer-cum-Sub Divisional Officer, Sikrahana with a direction that in view of the facts stated in his letter, an FIR is to be lodged against the driver of the concerned vehicle. The FIR contains the aforesaid letter no. 554 dated 12.05.2019 wherein reference has been made to the violation of Model Code of Conduct. In his letter, the Assistant Returning Officer has stated that the District Election Officer-cum-District Magistrate, East Champaran, Motihari has intercepted a four wheel vehicle displaying banners for the purpose of election camp