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2020 Supreme(Guj) 759
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
ILESH J. VORA, J.
Pradipsinh Bhagvatsinh Jadeja - Appellant
Versus
State of Gujarat - Respondent
R/Criminal Misc.Application No. 271 of 2020
Decided On : 26-10-2020
Advocate Appeared:
For the Appellant :Mr. ND Nanavati, Senior Advocate With Mr. BN Limbachia(3454)
For the Respondent: Mr. Sahil M Shah(6318) Mr. Mitesh Amin, Public Prosecutor Assistasted by Ms. Krina Calla, App
Point of Law: Magistrate is not to act as a post office in taking cognizance of each and every complaint filed before him and issue process as a matter of course. There must be sufficient indication in the order passed by the Magistrate that he is satisfied that the allegations in the complaint constitute.
Headnote:
Code of Criminal Procedure, 1973 - Section 482 and 204 - Representation of People Act , 1951 - Section 127A(1), 127A(2)(a) and 127A(4) - MLA of Constituency - Election Commission – Election - 0Election pamphlet or poster - Seeks to quash Criminal Complaint as well as summoning order – Cannot be said that it is ''election pamphlet'' within meaning of Section 127A(3)(b) - Thus, pamphlet page-37 & 38 taken at their face value, it cannot be said that even a prima-facie case is made out against applicant for alleged offences - Impugned order summoning the applicant and directing to register complaint for offences under Section 127A(1), 127A(2)(a) punishable under Section 127A(4) of the Act, 1951 and proceedings of Criminal Case quashed and set aside.
Facts of the case: Alleging that after declaration of election, the applicant had distributed the pamphlet during Navratri period - It is alleged in the application by Mr. Shah that he came to know about the pamphlet through one Mr. Vinaysinh Tomar, who was Member of NSUI, a student union - Admittedly, Mr. Vinaysinh Tomar had handed over alleged pamphlet to Mr. Pankaj Shah and accordingly, Mr. Pankaj Shah submitted it to District Election Officer alleging that action on the part of applicant is violative of Code of Conduct as pamphlet bear no signature and name of printer as well as publisher - Further alleged by Mr. Shah, that there was a photograph of applicant displaying on pamphlet, containing party symbol – Lotus along with printed slogan – 'Aapnu Gujarat' and 'Aagvu Gujarat' (our Gujarat – different Gujarat).
Findings of the court: It is admitted fact that complaint has been lodged at instruction of higher authority and complainant having no any personal knowledge with regard to allegation made in complaint - A bare reading of the complaint, it is not alleged that applicant has published, printed and distributed the ''election pamphlet'' - When this Court finds that the pamphlet (page-37&38) , cannot be said to be an ''election pamphlet'', as defined under provision of Section 127(3)(b) of the Act, 1951, Magistrate materially erred in taking cognizance and issuing summon against applicant. Similarly, there is no prima-facie evidence for offence under Section 127 A(2)(a) - Continuation of proceedings against the applicant to face trial for aforesaid offences would nothing but abuse of process of law and harassment and this is a fit case to exercise the power under Section 482 of Cr.P.C. to quash impugned order as well as proceedings of Criminal Case.
Result : Petition is allowed.
ORDER :
1. Heard Mr. N.D. Nanavati, learned Senior advocate assisted by Mr. B.N. Limachia, learned advocate for the applicant, Mr. Mitesh Amin, learned Public Prosecutor assisted by Ms. Krina Calla, learned APP for respondent No. 1 State and Mr. Sahil M. Shah, learned advocate for respondent No. 2- original complainant.
2. By way of present application preferred under Section 482 of the Code of Criminal Procedure (for short ''Cr.P.C''), the applicant seeks to quash the Criminal Complaint as well as summoning order dated 21.12.2019, passed by the learned Additional Chief Metropolitan Magistrate, Court No.3, Ahmedabad in Criminal Complaint No. 114499 of 2019, whereby and whereunder, in exercise of powers conferred under Section 204 of the Cr.P.C., he has summoned the applicant for facing the trial under Section 127A(1), 127A(2)(a) punishable under Section 127A(4) of Representation of People Act , 1951 (for the brevity 'the Act').
3. The facts leading to filing the present case are summarized as under:
3.1 The complainant - respondent no. 2 was Returning Officer of 72 - Asarva Constituent Assembly. The Election for the State Assembly for the year 2007 was declared and notified on 10.10.2007 by Election Commission of India. The elections were held to be in phase wise namely on 11.12.2007 and 16.12.2007. The applicant was at relevant time sitting MLA of Asarva Constituency at Ahmedabad.
3.2 One Mr. Pankaj Shah, President of Ahmedabad City Congress Committee submitted an application in the form of complaint addressed to District Election officer and Collector Ahmedabad, alleging that after declaration of the election, the applicant had distributed the pamphlet during Navratri period. It is alleged in the application by Mr. Shah that he came to know about the pamphlet through one Mr. Vinaysinh Tomar, who was Member of NSUI, a student union. Admittedly, Mr. Vinaysinh Tomar had handed over the alleged pamphlet to Mr. Pankaj Shah and accordingly, Mr. Pankaj Shah submitted it to the District Election Officer alleging that the action on the part of the applicant is violative of Code of Conduct as the pamphlet bear no signature and name of the printer as well as publisher. It is further alleged by Mr. Shah, that there was a photograph of the applicant displaying on the pamphlet, containing party symbol – Lotus along with printed slogan – 'Aapnu Gujarat' and 'Aagvu Gujarat' (our Gujarat – different Gujarat).
3.3 After receiving the aforesaid application, along with copy of alleged photograph, from Mr. Pankaj Shah, the District Election Officer, Ahmedabad vide his letter dated 25.10.2007, addressed to Returning Officer (respondent no. 2), directing him to file private complaint under the provisions of the Act and accordingly, the respondent no. 2 being a nominated officer, has filed a private complaint against the applicant and other unknown persons for the offences punishable under Section 127A(4) for the contravention of Section 127A(1) and 127A(2)(b) of the Act before the Additional Chief Metropolitan Magistrate Ahmedabad.
3.4 On receiving the complaint, the Court of learned Metropolitan Magistrate initially ordered verification and the same was recorded on 20.11.2007 and thereafter, the learned Magistrate ordered the investigation by Meghaninagar Police Station, Ahmedabad and directed to submit the investigation report within stipulated period under Section 202 of Cr.P.C.
3.5 Pursuant to the order of learned Magistrate directing the Meghaninagar Police Station to carry out investigation, the investigating officer had submitted a report on 30.12.2007 along with statements of Shri Pankaj Shah and Mr. V.V. Tomar, concluding that they are unable to find out the name of the printer and publisher of the pamphlet and also it is not established that who has distributed the pamphlet.
3.6 Upon receiving the investigating report from Meghaninagar Police Station, the learned Magistrate, vide order dated 21.12.2019 issued process under Section 204 of Cr.P.C.,
