Proceedings under Section 171H IPC cannot stand without accompanying violations under Section 188 IPC; permissions granted by the Chief Electoral Officer negate the basis of the charges.

ORDER:

ANIL KUMAR JUKANTI, J.

1. This Criminal Petition is filed under Section 528 of the Bharatiya Nagarik Suraksha Sanhita (for short ‘ BNSS ’) by petitioner/accused to quash the proceedings against him in C.C.No.315 of 2019, on the Court of VII Additional Chief Metropolitan Magistrate, Nampally at Hyderabad, arising out of FIR No.284 of 2018, dated 23.11.2018, on the file of Malakpet Police Station, under Section 171H of Indian Penal Code, 1860 (for short IPC ).

2. Heard Mr. A.Prabhakar Rao, learned counsel for petitioner, and learned Assistant Public Prosecutor for respondent No.1–State. Perused the material on record.

3. On the basis on a complaint dated 23.11.2018, an F.I.R. bearing No.284 of 2018, dated 23.11.2018 came to be registered for an offence under Section 171H of IPC . Further, a charge sheet under Section 173 of Code of Criminal Procedure (for short ‘Cr.P.C.’) came to be filed and registered as C.C.No.315 of 2019 before the VII Additional Chief Metropolitan Magistrate, Nampally, Hyderabad.

4. The complaint is filed by the Sub Inspector of Police, Malakpet Police Station, Hyderabad, which was lodged by one U.Srinivas Rao, Flying Squad Member for Malakpet Assembly Constituency-58. It was averred in the complaint that the complainant was posted as Flying Squad Member of Malakpet Assembly Constituency-58 for General Elections, 2018. That the complainant while performing his duty on 21.11.2018 to 22.11.2018 (8:00 p.m.-8:00 a.m.), found flex banners advertising different schemes with party symbol (car symbol of TRS party) on metro pillars. The total number of banners on the pillars, as listed in the complaint are around 45. It is also averred that it is violation of Model Code of Conduct of General Elections, 2018 and hence, necessary action to be initiated.

5. Learned counsel for the petitioner submitted that case pertains to violation of Model Code of Conduct in view of General Elections, 2018. It is further submitted that any violation of Model Code of Conduct would be a violation of a promulgation to do or not to do certain acts by the concerned authorities. It is also submitted that once Model Code of Conduct is in operation with respect to General Elections, any violation if alleged, Section 188 of IPC gets attracted.

6. It is submitted that the complaint is lodged by a member of the Flying Squad, specifically stating that he was in charge of a particular area and that, while he was conducting routine survey of the area, he found flex banners of a particular party pasted on various metro pillars, which is a violation of promulgation of the Court. Hence, action was sought to be initiated. It is further submitted that Section 171H of IPC cannot independently be made applicable without there being an offence made out under Section 188 of .

7. Learned counsel invited the attention of this Court to Section 195 of Cr.P.C. and submitted that Sections 172 to 188 of IPC are offences which have an umbrella of protection at the time of cognizance, in the sense that complaint is to be made to the Magistrate by the Authority, and it is only upon such a complaint that at the time of taking of cognizance, the bar under of Cr.P.C. kicks in. Learned counsel further invited the attention of this Court to Section 171H of and contended that it pertains to violation of Election Code and therefore, it cannot be considered in isolation, as Section 188 of has to be roped in.

8. Learned counsel further submitted that it is not the case of the State that the accused did not take permission. Accused has sought permission from the Chief Electoral Officer, Telangana State, for