The Representation of the People Act does not apply to Taluka Panchayat elections, rendering related FIR an abuse of process.

ORAL ORDER

1. By way of this petition, the petitioner has prayed for seeking following reliefs under Section 482 of the Criminal Procedure Code.

(A) Admit and allow this petition;

(B) Issue a writ of mandamus or any other writ, order or direction to quash and set aside the impugned FIR No. 11192029210087 dated 23.02.2021 at Koth Police Station, Ahmedabad (Rural), Ahmedabad, U/s 129 (3) of The Representation of The People Act, 1951;

(C) Direct Respondent No. I not to take any coercive step against the petitioner and also stay further investigations into the case till the disposal of this petition;

(D) For such other and further orders as may be deemed fit and proper in the interest of justice.

2. Heard learned advocate Mr. Rahul Sharma appearing for the petitioner and learned advocate Mr. Hardik Mehta appearing for the State.

3. It is a case where FIR is filed under Section 129 (3) of the Representation of the People Act, 1951 ( for short “the Act of 1951”) alleging that the petitioner an unarmed Constable Suresh Karamshibhai, despite serving in the Police Department pursued the person to give his vote at election of Taluka Panchayat and thereby committed the mischief of Section 129 (1) and Section 129 (2) of the Act of

1951.

4. Learned advocate Mr. Rahul Sharma appearing for the petitioners states that Section 2(1)(d) defines “election” means where operation of the Representation of the People Act,1951, would apply. He would submit that it must be an election to fill seat or seats in either House of Parliament or Legislature of a State. He would further submit that Taluka Panchayat, does not fall within the defination of election within Section 2 (1) (d) of the Act.

5. In view of that he would submit that Section 129 would not apply to Taluka Panchayat election therefore, filing of the FIR is an abuse of process of law. He would submit that for a mischief which the petitioner alleged to have committed, the departmental proceedings have already been commenced and is going on.

5.1 Upon above submissions learned advocate submit to quash the FIR and to allow this petition.

6. Learned APP could not point any other defination of election which could attract the offence under Section 129 (1) and (2) having punishment defined under Section 129 (3)

of the Act.

7. At the outset I may refer to 129 of the Act of 1951 as under :

129. Officers, etc., at elections not to act for candidates or to influence voting.—

(1)No person who is a district election officer or a returning officer, or an assistant returning officer, or a presiding or polling officer at an election, or an officer or clerk appointed by the returning officer for the presiding officer to perform any duty in connection with an election shall in the conduct or the management of the election do any act (other than the giving of vote) for the furtherance of the prospects of the election of a candidate.(2)No such person as aforesaid, and no member of a police force, shall endeavour—(a)to persuade any person to give his vote at an election, or(b)to dissuade any person from giving his vote at an election, or(c)to influence the voting of any person at an election in any manner.(3)Any person who contravenes the provisions of sub-section (1) or sub-section (2) shall be punishable with imprisonment which may extend to six months or with fine or with both. 2(4) An offence punishable under sub-section (3) shall be cognizable.

8. It is also required to refer to defination of election as defined in Section 2(1)(d) of the Act which as under :- Section 2(1) in The Representation of the People Act, 1951 (d)“election” means an election to fill a seat or seats in either House of Parliament or in the House or either House of the Legislature of a State other th