The main legal point established in the judgment is the requirement of a written complaint for taking cognizance under Section 188 of IPC and the applicability of illustrative cases for quashing proceedings as established by the Supreme Court.

ORDER :

Akhil Kumar Srivastava, J.

1. This petition under Section 482 of CrPC has been filed for quashing the FIR in Crime No.167/2018 registered at Police Station Sirmour District Rewa for the offence punishable under Section 188 of the Indian Penal Code and Sections 129, 134 and 134A of the Representation of the People Act, 1951 (for short 'the Act of 1951) as well as further proceedings thereon.

2. According to the First Information Report which was lodged on 30.10.2018 upon an oral information given by SDM/Returning Officer to the effect that the petitioner being a Govt. servant participated in the election campaign for the State Assembly Election 2008 by sharing a post of political party and photo of banner relating to inauguration programme held on 16.09.2018 on Facebook cover photo and thereby canvassing for votes in favour of BJP candidates. The said act of the petitioner was alleged to be breach of Model Code of Conduct which is in force for the Vidhan Sabha Election. Accordingly, the petitioner is found to have committed clear violation of the provisions of the Act of 1951. Consequently, an FIR has been registered against the petitioner.

3. Learned counsel for the petitioner contends that in the instant case, the process of the Court is sought to be abused by the respondent No. 2 with oblique motive. The criminal proceeding is manifestly intended with mala fides and the proceeding is maliciously instituted with an ulterior motive. It is submitted that inauguration programme has been organized by the Ministry of Forest Department and the same was not a political function and was not wooing the voters or for winning election. The petitioner has not attended the function as an agent of any political party whereas he was invited therein and he was honoured by the Hon'ble Minister for his effort in declaring that place as a "Manoranjan Isthal". It is further submitted that it was not an election meeting. Reliance has also been placed to the decision of a Division Bench of this Court in State of M.P. vs Jyotiraditya Scindia, 2014 (1) JLJ 326 to contend that the written complaint to Magistrate is must for taking cognizance for the offence under Section 188 of IPC. Since the ingredients of the aforesaid offences are not attracted, even if the allegations in the FIR are read as a whole and accepted in its entirety as true, such allegations do not constitute any offence. It is submitted that the FIR registered against the petitioner is a gross misuse of powers by the police and is liable to be quashed.

4. On the other hand, learned Panel Lawyer appearing for the respondent No. 1/State, while refuting the submissions made by learned counsel for the petitioner, has sought to justify the lodging of FIR against the petitioner.

5. Heard learned counsel for the respective parties and perused the case diary.

6. Before adverting to the fact situation as prevailing in the case, it would be appropriate to take a look at the legal provision of Section 188 of IPC and Sections 129, 134 and 134A of the Act of 1951 respectively.

"188. Disobedience to order duly promulgated by public servant. -Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management, disobeys such direction, shall, if such disobedience causes or tends to cause obstruction, annoyance or injury, or risk of obstruction, annoyance or injury, to any person lawfully employed, be punished with simple imprisonment for a term which may extend to one month or with fine which may extend to two hundred rupees, or with both; and if such disobedience causes or trends to cause danger to human life, health or safety, or causes or tends to cause a riot or affray, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees