The Allahabad High Court has quashed the criminal proceedings going on in the court of CJM Mirzapur against SP candidate former minister Kailash Chaurasia and others in the 2017 Sadar Mirzapur assembly elections, terming the process illegal.
A Single Bench of Justice Raj Beer Singh passed this order while hearing an application filed by Kailash Chaurasiya and Another.
The application under Section 482 CrPC has been filed for quashing of the entire proceedings, including cognizance order dated 11.05.2018 as well as charge-sheet dated 21.04.2017, of Case under Sections – 171-H, 188 IPC, Police Station – Kotwali Shahr, District – Mirzapur, pending in the court of Chief Judicial Magistrate, Mirzapur.
On 09.02.2017, Subhash Chandra Singh, Assistant Engineer, Rural Engineering Department, Mirzapur lodged a first information report, alleging that he along with some other officials was part of the flying squad in relation to assembly elections pertaining to Sadar Constituency, Mirzapur.
In that election applicant-accused Kailash Chaurasiya, who was a Samajwadi Party candidate, was carrying a procession comprising about 1,000 persons and that one government escort gypsy was also being used for canvassing purpose.
It was further alleged that in City Club Lawn, a meeting of about 1200 persons was held against the sanctioned strength. The first information report was registered against applicant No 1 and two others under Sections – 171-H, 188 IPC and after investigation, a charge sheet was submitted for offences under Section -171-H, 188 IPC.
Counsel for the applicants submitted that no prima facie case is made out against the applicants/accused. In view of the provisions under Section 195 CrPC, the prosecution of applicants for the offence under Section 188 IPC is permissible only on a complaint in writing made by the competent officer, whose order could have been violated by the accused. The prosecution for offence under Section 188 IPC cannot be initiated on a police report filed under section 173(2) CrPC. It was submitted that cognizance for offence under Section 188 IPC against the applicants is against the law.
It was further submitted that so far the offence under Section 171-H IPC is concerned, there is absolutely no allegations so as to make out the ingredients of that offence and thus, no prima facie case under Section 171-H IPC is made out.
Referring to these facts, it was submitted that the trial court did not consider the matter in correct perspective while taking cognizance and summoning the applicants for the aforesaid offences.
It was submitted that the impugned proceedings are nothing but are abuse of the process of court and thus, the impugned proceedings, including summoning order are liable to be quashed.
AGA has opposed the application and submitted that there are allegations against the applicants that during election of Legislative Assembly in the year 2017, the applicant no1, being contesting candidate of Samajwadi Party, was taking out a road show comprising about 1000 persons and meeting of about 1200 persons was held in City Club Lawn, against the sanctioned limit. It was submitted that a prima facie case is made out against the applicants.
The Court observed that,
It is apparent that in respect of offences punishable under Sections 172 to 188 IPC or abetment thereof, the Court can take cognizance only on a complaint in writing made the public servant concerned or some public servant to whom he administratively subordinate. The prohibitory orders are issued by the executive Magistrates.
In the matter, admittedly no such complaint of a public servant concerned has been filed and the cognizance has been taken on the charge-sheet submitted by the police. The charge-sheet / report under section 173(2) CrPC cannot be treated to be a complaint, as envisaged under section 195 CrPC.
In view thereof, taking cognizance for offence under Section 188 IPC by the Trial Court is hit by Section 195 CrPC and therefore, the order taking cognizance for offence under Section 188 IPC against the applicants on a police report is not sustainable and impugned proceedings under section 188 IPC are liable to be quashed.
In the matter, there is absolutely no such allegation that applicants/accused have incurred or authorized expenses on account of holding of any public meeting or upon any advertisement, circular or publication for the purpose of promoting or procuring the election of such candidate.
In fact, in the first information report, it was mentioned that during the election of Legislative Assembly in the year 2017, applicant no 1 being the candidate of Samajwadi Party, was taking a road show comprising about 1000 persons. After perusing the record and statements of witnesses, examined during investigation, there is absolutely no such material so as to fulfil the ingredients of the offence as prescribed under Section 171-H IPC and thus, no prima facie case under Section 171-H IPC is made out.
The Court said that,
The legal position on the issue of quashing of criminal proceedings is well-settled that the jurisdiction to quash a complaint, FIR or a charge-sheet should be exercised sparingly and only in exceptional cases. However, where the allegations made in the FIR or the complaint and material on record even if taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused, the charge-sheet may be quashed in exercise of inherent powers under Section 482 of the CrPC.
The inherent power of quashing of first information report or proceedings has to be exercised sparingly and with caution and when and only when such exercise is justified by the test specifically laid down in the provision itself. But in exercise of the powers court would be justified to quash any proceeding if it finds that from the complaint no prima facie case is disclosed or initiation/continuance of it amounts to abuse of the process of court or quashing of the proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted.
“In the matter, considering the allegations made in the first information report and the material collected during investigation, no prima facie case under Section 171-H IPC is made out. So far the offence under sections 188 IPC is concerned, as stated above, no complaint of public servant was filed in terms of Section 195 CrPC and the charge-sheet submitted by the police cannot be treated to be a complaint and thus, the cognizance of the offence under section 188 IPC is hit by the bar of Section 195 CrPC. Thus, the case falls within the categories carved out by the Apex Court for quashing of proceedings. Therefore, no useful purpose would be served by subjecting the applicants/accused to trial,” the Court further observed while allowing the application.
In view of aforesaid, the Court quashed the proceedings including cognizance order and charge-sheet, of Case under Sections – 171-H, 188 IPC, Police Station – Kotwali Shahr, District – Mirzapur.
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A Single Bench of Justice Raj Beer Singh passed this order while hearing an application filed by Kailash Chaurasiya and Another.
The application under Section 482 CrPC has been filed for quashing of the entire proceedings, including cognizance order dated 11.05.2018 as well as charge-sheet dated 21.04.2017, of Case under Sections – 171-H, 188 IPC, Police Station – Kotwali Shahr, District – Mirzapur, pending in the court of Chief Judicial Magistrate, Mirzapur.
On 09.02.2017, Subhash Chandra Singh, Assistant Engineer, Rural Engineering Department, Mirzapur lodged a first information report, alleging that he along with some other officials was part of the flying squad in relation to assembly elections pertaining to Sadar Constituency, Mirzapur.
In that election applicant-accused Kailash Chaurasiya, who was a Samajwadi Party candidate, was carrying a procession comprising about 1,000 persons and that one government escort gypsy was also being used for canvassing purpose.
It was further alleged that in City Club Lawn, a meeting of about 1200 persons was held against the sanctioned strength. The first information report was registered against applicant No 1 and two others under Sections – 171-H, 188 IPC and after investigation, a charge sheet was submitted for offences under Section -171-H, 188 IPC.
Counsel for the applicants submitted that no prima facie case is made out against the applicants/accused. In view of the provisions under Section 195 CrPC, the prosecution of applicants for the offence under Section 188 IPC is permissible only on a complaint in writing made by the competent officer, whose order could have been violated by the accused. The prosecution for offence under Section 188 IPC cannot be initiated on a police report filed under section 173(2) CrPC. It was submitted that cognizance for offence under Section 188 IPC against the applicants is against the law.
It was further submitted that so far the offence under Section 171-H IPC is concerned, there is absolutely no allegations so as to make out the ingredients of that offence and thus, no prima facie case under Section 171-H IPC is made out.
Referring to these facts, it was submitted that the trial court did not consider the matter in correct perspective while taking cognizance and summoning the applicants for the aforesaid offences.
It was submitted that the impugned proceedings are nothing but are abuse of the process of court and thus, the impugned proceedings, including summoning order are liable to be quashed.
AGA has opposed the application and submitted that there are allegations against the applicants that during election of Legislative Assembly in the year 2017, the applicant no1, being contesting candidate of Samajwadi Party, was taking out a road show comprising about 1000 persons and meeting of about 1200 persons was held in City Club Lawn, against the sanctioned limit. It was submitted that a prima facie case is made out against the applicants.
The Court observed that,
It is apparent that in respect of offences punishable under Sections 172 to 188 IPC or abetment thereof, the Court can take cognizance only on a complaint in writing made the public servant concerned or some public servant to whom he administratively subordinate. The prohibitory orders are issued by the executive Magistrates.
In the matter, admittedly no such complaint of a public servant concerned has been filed and the cognizance has been taken on the charge-sheet submitted by the police. The charge-sheet / report under section 173(2) CrPC cannot be treated to be a complaint, as envisaged under section 195 CrPC.
In view thereof, taking cognizance for offence under Section 188 IPC by the Trial Court is hit by Section 195 CrPC and therefore, the order taking cognizance for offence under Section 188 IPC against the applicants on a police report is not sustainable and impugned proceedings under section 188 IPC are liable to be quashed.
In the matter, there is absolutely no such allegation that applicants/accused have incurred or authorized expenses on account of holding of any public meeting or upon any advertisement, circular or publication for the purpose of promoting or procuring the election of such candidate.
In fact, in the first information report, it was mentioned that during the election of Legislative Assembly in the year 2017, applicant no 1 being the candidate of Samajwadi Party, was taking a road show comprising about 1000 persons. After perusing the record and statements of witnesses, examined during investigation, there is absolutely no such material so as to fulfil the ingredients of the offence as prescribed under Section 171-H IPC and thus, no prima facie case under Section 171-H IPC is made out.
The Court said that,
The legal position on the issue of quashing of criminal proceedings is well-settled that the jurisdiction to quash a complaint, FIR or a charge-sheet should be exercised sparingly and only in exceptional cases. However, where the allegations made in the FIR or the complaint and material on record even if taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused, the charge-sheet may be quashed in exercise of inherent powers under Section 482 of the CrPC.
The inherent power of quashing of first information report or proceedings has to be exercised sparingly and with caution and when and only when such exercise is justified by the test specifically laid down in the provision itself. But in exercise of the powers court would be justified to quash any proceeding if it finds that from the complaint no prima facie case is disclosed or initiation/continuance of it amounts to abuse of the process of court or quashing of the proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted.
“In the matter, considering the allegations made in the first information report and the material collected during investigation, no prima facie case under Section 171-H IPC is made out. So far the offence under sections 188 IPC is concerned, as stated above, no complaint of public servant was filed in terms of Section 195 CrPC and the charge-sheet submitted by the police cannot be treated to be a complaint and thus, the cognizance of the offence under section 188 IPC is hit by the bar of Section 195 CrPC. Thus, the case falls within the categories carved out by the Apex Court for quashing of proceedings. Therefore, no useful purpose would be served by subjecting the applicants/accused to trial,” the Court further observed while allowing the application.
In view of aforesaid, the Court quashed the proceedings including cognizance order and charge-sheet, of Case under Sections – 171-H, 188 IPC, Police Station – Kotwali Shahr, District – Mirzapur.
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