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2020 Supreme(All) 505
IN THE HIGH COURT OF ALLAHABAD
ALI ZAMIN, J.
Bhoop Kishor Saini And Another – Appellants
Versus
State of U.P. and Another – Respondents
Application U/S 482 No.10567 of 2020
Decided on : 15-06-2020
Advocate Appeared:
For the Appellant : Rajesh Kumar Mishra
Point of Law:
The object which the statutes seek to subserve is clearly in consonance with the concept of fairness of trial as enshrined in Article 21 of the Constitution of India. It is, therefore, of the utmost importance that any prosecution, whether by the State or a private complainant must abide by the letter of law or take the risk of the prosecution failing on the ground of limitation. The prosecution against the respondent being barred by limitation the conviction as also the sentence of the respondent as also the entire proceedings culminating in the conviction of the respondent herein become non-est. For these reasons, given above, the Court hold that the point of law regarding the applicability of Section 468 Cr.P.C. has been correctly decided by the Punjab and Haryana High Court.
Headnote:
Code of Criminal Procedure, 1973 – Sections 144, 468, 482 – Indian Penal Code, 1860 – Sections 188, 171 – Representation of the People Act – Section 127 – Permission of roadshow – FIR registered – Quashment of FIR and Complaint case – Application has been filed under Section 482 Cr.P.C. for quashing entire proceeding of Complaint Case under Sections 188, 171 IPC and 127 Representation of People Act, P.S pending in court of Chief Judicial Magistrate – Held, Magistrate concerned while passing impugned order has not considered law of limitation for taking cognizance in matter, therefore, cognizance taken by Magistrate on complaint regarding incident for offences is against Section 468 (2) (b) Cr.P.C. as well as law laid down by Hon'ble Supreme Court in State of Punjab v. Sarwan Singh – Court is of opinion that impugned order contradicts Section 468 (2) (b) Cr.P.C. as well as law laid down by Hon'ble Supreme Court in State of Punjab v. Sarwan Singh (supra), therefore, no useful purpose will be served by prolonging proceeding of above mentioned complaint case and to secure ends of justice, it is a fit case to quash entire proceeding of complaint case by invoking power provided u/s 482 Cr.P.C – Proceedings in aforesaid case are, hereby, quashed – Application Allowed (Paras 13, 14)
Facts of the Case:
Complaint in sequence of General Vidhan Sabha Election-2017, orders for Model Code of Conduct and Section 144 Cr.P.C. were promulgated and during the effect of the above orders, on 12.2.2017 at about 10:15 a.m., accused Bhoop Kishor Saini (Shiv Sena Candidate) and Vishal Sharma along with 40-50 motorcycles and 10-15 cars came to Imperial Trivium (Tiraha) Crossing by holding a roadshow where Sub Inspector-Pramod Kumar Sharma, on duty, and employees demanded permission of roadshow, which they could not show it, thus, they committed offence u/s 188 IPC.
Finding of the Court:
Magistrate concerned while passing impugned order has not considered law of limitation for taking cognizance in matter, therefore, cognizance taken by Magistrate on complaint regarding incident for offences is against Section 468 (2) (b) Cr.P.C. as well as law laid down by Hon'ble Supreme Court in State of Punjab v. Sarwan Singh – Court is of opinion that impugned order contradicts Section 468 (2) (b) Cr.P.C. as well as law laid down by Hon'ble Supreme Court in State of Punjab v. Sarwan Singh (supra), therefore, no useful purpose will be served by prolonging proceeding of above mentioned complaint case and to secure ends of justice, it is a fit case to quash entire proceeding of complaint case by invoking power provided u/s 482 Cr.P.C – Proceedings in aforesaid case are, hereby, quashed.
Result: Application Allowed
JUDGMENT :
1. Heard learned counsel for the applicants, learned AGA for the State and perused the record.
2. This Application has been filed under Section 482 Cr.P.C. for quashing the entire proceeding of Complaint Case No.6161 of 2018 (State vs. Bhoop Kishor & another), under Sections 188, 171 IPC and 127 Representation of the People Act, P.S. Kotwali, District Rampur, pending in the court of Chief Judicial Magistrate, Moradabad.
3. As per complaint (Annexure-1 of the application) in sequence of General Vidhan Sabha Election-2017, orders for Model Code of Conduct and Section 144 Cr.P.C. were promulgated and during the effect of the above orders, on 12.2.2017 at about 10:15 a.m., accused Bhoop Kishor Saini (Shiv Sena Candidate) and Vishal Sharma along with 40-50 motorcycles and 10-15 cars came to Imperial Trivium (Tiraha) Crossing by holding a roadshow where Sub Inspector-Pramod Kumar Sharma, on duty, and employees demanded permission of roadshow, which they could not show it, thus, they committed offence u/s 188 IPC. The procession was dispersed by the police and by registering Case Crime No.97/17, u/s 188/171H of IPC and 127 Representation of the People Act, matter was investigated and prima facie case was found against the accused-applicants. Names and addresses of the other accused persons could not be traced. According to Section 195 (1) Cr.P.C., a complaint should be filed by the competent officer in the matter, therefore, a complaint was filed. As per FIR, Annexure-2 of the application, Case Crime No.0097/2017, under Sections 188/171-H IPC and 127 Representation of the People Act, was registered against the applicants to the same aspect.
4. Learned counsel for the applicants submits that applicant no.1-Bhoop Kishor Saini was permitted by the competent authority for holding a roadshow of 100 cars and 200 motorcycles on 12.2.2017 since 11.00 A.M. to 4.00 P.M., vide its order dated 12.2.2017, but according to complaint only 40 to 50 motorcycles and 10 to 15 cars were used for the roadshow, therefore, in view of the permission granted by the competent authority, they have not flouted any order, hence, no offence of Section 171H of IPC has been committed by them. He further submits that for the offences u/s 171H & 188 IPC, 1860 and 127 Representation of the People Act, 1950, punishment provided is fine of Rs.500/-and six months imprisonment each, respectively. As per complaint version, the offence has been committed on 12.2.2017 and maximum sentence provided for the offences is six months, therefore, complaint should have been filed within a period of one year as provided in Section 468 Cr.P.C. but complaint has been filed after a period of one year i.e. on 15.6.2018, which is barred by time, but court below has not considered this aspect while passing the impugned order, therefore, it is not sustainable and liable to be quashed.
5. Learned AGA opposed the prayer of the applicants by contending that permission was granted on 12.2.2017 for a fixed period i.e. from 11:00 a.m. to 4:00 p.m. but applicants had held a roadshow on 12.2.2017 at 10:15 a.m. and on a demand by complainant, they could not show the permission.
6. In the instant case the issue involved for consideration is, whether, complaint filed against the applicants is time barred and in view of Section 468 (2) (b) Cr.P.C. it is liable to be quashed.
7. As per impugned summoning order dated 15.6.2018, a complaint, on the same day, was presented by Sub Inspector-Pramod Kumar Sharma against applicants-Bhoop Kishor Saini and Vishal Sharma, under Sections 188/171 IPC and 127 Representation of the People Act, which was registered as a Complaint Case No.6161 of 2018 and learned Magistrate considering that complainant is a public servant, so there is no necessity to record statement u/s 200 Cr.P.C. and forming the opinion that from the available evidence on record offences, under Sections 188/171 IPC and 127 Representation of the People Act, appear to have been committed by applic
