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2020 Supreme(Guj) 758
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
GITA GOPI, J.
Parshottambhai Odhavjibhai Solanki - Appellant
Versus
State of Gujarat & Ors - Respondent
R/Criminal Misc.Application No. 533 of 2016
Decided On : 04-11-2020
Advocate Appeared:
For the Appellant : Mr. Rajesh O Gidiya(5222)
For the Respondent: Mr. Pranav Trivedi, Addl. Public Prosecutor(2)
Point of Law: Power of the High Court to quash the criminal proceedings or FJ.R. The Apex Court summarized the legal position by laying down the following guidelines to be followed by the High Court in the exercise of their inherent powers to quash the criminal proceeding:
Headnote:
Code of Criminal Procedure, 1973 - Section 482 - Indian Penal Code, 1860 - Section 171E – Election - Offence of Bribery – Voting - Election process – Gratification - Bye-Elections to Legislative Assembly - Seeking quash of order – It clear that person concerned has to give a gratification to somebody with the object of inducing him or any other person to exercise any electoral right or of rewarding any person for having exercised any such right; or accepts either for himself or for any other person any gratification as a reward for exercising any such right or for inducing or attempting to induce any other person to exercise any such right.
Facts of the case: complainant herein was a member of the Flying Squad. It appears that petitioner who was nominated as a star campaigner by political party – Bharatiya Janta Party (BJP) arrived at Jasdan at around 1310 hrs. in a Helicopter Party for purpose of canvassing a candidate belonging to said political party - At that time, members of aforesaid two teams were present at Helipad - It appears that petitioner, along with his security personnel, got into a car belonging to one of party workers and thereafter, left for factory of one Gajendrabhai Ramani situated at GIDC, Jasdan - As teams had received a secret information that petitioner was carrying unaccounted cash with him, the two teams had followed car in which the petitioner had left Helipad and they also reached factory - Petitioner was asked to open suitcase, which he had carried along with him - On inspection, the team found cash amount to tune of Rs.2.75 Lacs inside the suitcase - As petitioner was found to be carrying cash in excess of the limit prescribed by Election Commission of India at relevant point of time, necessary inquiry was made - However, as petitioner could not provide satisfactory explanation, amount was seized after following due procedure.
Findings of the court: Impugned order passed by Court below is without any basis and is based on assumptions and presumptions - No cogent reasons have been assigned by Court below while directing registration of complaint under section 171E of IPC - It appears that usage of modern banking facilities like NEFT and RTGS by son of petitioner, as is reflected from bank statement produced by the petitioner, has led Court below to conclude that petitioner was carrying cash amount in question for utilizing it as “bribe” - However, as discussed in foregoing paragraphs, no ingredients of the offence of “bribery” are present in this case - Further, the Court below has also observed that no oral or written objection has been filed by either the election officer or by the complainant to the police report wherein it was stated no offence as alleged was made out against the petitioner.
Result : Petition is allowed.
JUDGMENT :
1. Challenge in this petition filed under section 482 of the Code of Criminal Procedure, the petitioner has prayed to quash and set aside the order passed by the learned Judicial Magistrate First Class, Jasdan in N.C. Case No.29 of 2014 dated 10.12.2015 whereby the offence under section 171E of the Indian Penal Code was registered against the petitioner and summons was ordered to be issued.
2. The facts in brief are as under;
In connection with the Bye-Elections to the Legislative Assembly scheduled on 30.04.2014, the District Magistrate had constituted two teams, i.e. Flying Squad and Static Surveillance Team, for maintaining a watch over the election process. The complainant herein was a member of the Flying Squad. It appears that on 22.04.2014 the petitioner herein, who was nominated as a star campaigner by the political party – Bharatiya Janta Party (BJP) arrived at Jasdan at around 1310 hrs. in a Helicopter Party for the purpose of canvassing a candidate belonging to the said political party. At that time, the members of the aforesaid two teams were present at the Helipad. It appears that the petitioner, along with his security personnel, got into a car belonging to one of the party workers and thereafter, left for the factory of one Gajendrabhai Ramani situated at GIDC, Jasdan. As the teams had received a secret information that the petitioner was carrying unaccounted cash with him, the two teams had followed the car in which the petitioner had left the Helipad and they also reached the factory. The petitioner was asked to open the suitcase, which he had carried along with him. On inspection, the team found cash amount to the tune of Rs.2.75 Lacs inside the suitcase. As the petitioner was found to be carrying cash in excess of the limit prescribed by the Election Commission of India at the relevant point of time, necessary inquiry was made. However, as the petitioner could not provide satisfactory explanation, the amount was seized after following due procedure.
2.1 It was alleged against the petitioner that the petitioner had carried said amount with a view to malign the election process or to entice the voters or for any other mala fide intention and therefore, N.C. complaint No.29 of 2015 was registered against the petitioner with Jasdan Police Station for offence punishable under section 171E of the IPC. In connection with the said complaint, the investigating officer filed report dated 01.11.2015 before the Court of learned Magistrate at Jasdan to the effect that no offence as alleged is made out against the petitioner. However, the learned Magistrate passed the impugned order dated 10.12.2015 directing registration of N.C. complaint against the petitioner. Being aggrieved by the same, the present petition has been preferred.
3. Mr. Rajesh Gidiya, learned advocate for the petitioner, submitted that the petitioner herein was nominated as one of the star campaigners for the purpose of campaigning for BJP candidates for the Bye-Elections to the Gujarat Legislative Assembly scheduled on 30.04.2014. For the purpose of campaigning, the petitioner had reached Jasdan, District Rajkot, during which time, the petitioner was carrying the suitcase containing cash to the tune of Rs.2.75 Lacs. After carrying out necessary investigation, the investigating officer filed report stating that no offence under section 171E of IPC was made out against the petitioner. During the course of investigation, the statements of the security personnel, who had accompanied the petitioner to the trip and also of the son of the petitioner – Divyesh Parsottambhai Solanki, were recorded. It was submitted that the cash amount belonged to the son of the petitioner, named Divyesh Parsottambhai Solanki and that to substantiate such claim, the relevant bank statement of the son of the petitioner was also produced before the investigating officer. It was, accordingly, urged that the Court below seriously erred in directing registration of complaint u
