Abhay Singh v. State of U.P. Thru. Addl. Chief Secy. Deptt. Home and Another

Court No. - 9 Case :- APPLICATION U/S 482 No. - 6063 of 2023 Applicant :- Abhay Singh Opposite Party :- State Of U.P. Thru. Addl. Chief Secy. Deptt. Home And Another Counsel for Applicant :- Anuj Pandey,Ashish Kumar Singh Counsel for Opposite Party :- G.A. Hon'ble Dinesh Kumar Singh,J.

¶1Heard learned counsel for the petitioner as well as learned AGA and perused the record.

¶2The present petition under Section 482 Cr.P.C. has been filed seeking quashing of order of the summoning dated 27.05.2023 as well as the charge sheet and the entire proceedings of Case No.7486 of 2023 arising out of Case Crime No.51 of 2022, under Sections 171-H and 269 IPC and Section 3 of the Epidemic Diseases Act, 1897, Police Station Kotwali Bikapur, District Ayodhya, pending in the court of Chief Judicial Magistrate, Faizabad.

¶3Petitioner is the sitting member of the Legislative Assembly of Uttar Pradesh. An F.I.R. No.0051 of 2022 was lodged against the present petitioner and other under Sections 171-H, 188, 269 IPC and Section 3 of the Epidemic Diseases Act, 1897, Police Station Kotwali Bikapur, District Ayodhya on 2.2.2022 alleging that petitioner, who was Ex-Member of Legislative Assembly, Gosainganj, Ayodhya was campaigning along with 200-250 supporters without taking necessary permission. It is further said that the petitioner was carrying on the campaign in violation of Covid-19 guidelines, which were explained to him and his supporters.

¶4The Investigating Officer after conducting the investigation, had filed charge sheet on 10.5.2022 under Sections 171-H, 188 and 269 IPC and Section 3 of Epidemic Diseases Act, 1897. Learned Magistrate had taken cognizance and summoned the petitioners vide impugned order dated 27.5.2023 to face the trial for offences under Sections 171-H, 188 and 269 IPC and Section 3 of Epidemic Diseases Act, 1897.

¶5Learned counsel for the petitioner submits that in view of the bar prescribed under Section 195 Cr.P.C. the prosecution for the said offence is permissible only on a complaint in writing by the competent officer whose order could have been violated by a person. He further submits that the prosecution for offence under Section 188 IPC can not be initiated by a police report. He, therefore, submits that taking cognizance for offence under Section 188 IPC against the petitioners, is wholly illegal and without jurisdiction.

¶6So far the offence under Section 171-H IPC is concerned, learned counsel for the petitioners submits that Section 171-H IPC can not be invoked against the candidate of an election. That offence is in respect of an agent or supporter, but not against the candidate. He also submits that the offences under Sections 269 and 270 IPC are also not made out in the facts and circumstances of the case. He, therefore, submits that the learned Magistrate has not applied his judicial mind while taking cognizance against the petitioner and summoning him to face the trial.

¶7Considering the entirety of the facts and circumstances of the case, the impugned proceedings are nothing but an abuse of process of the Court and the petitioner, who is a responsible Member of Legislative Assembly, is unnecessarily being prosecuted and the facts of the case do not disclose any such offence for which he is being prosecuted.

¶8On the other hand learned AGA has not disputed the aforesaid legal submissions.

¶9For the sake of convenience, Section 195 Cr.P.C. reads as under:-"195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence.-(1) No Court shall take cognizance-

(a) (i) of any offence punishable under sections 172 to 188 (both inclusive) of the Indian Penal Code, (45 of 1860), or

(ii) of any abetment of, or attempt to commit, such offence, or

(iii) of any criminal conspiracy to commit such offence, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate;

(b) (i) of any offence punishable under any of the following sections of the Indian Penal Code (45 of 1860), namely, sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, or

(ii) of any offence described in section 463, or punishable under section 471, section 475 or section 476, of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, or

(iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub-clause (i) or sub-clause (ii), 1 [except on the complaint in writing of that Court or by such officer of the Court as that Court may authorise in writing in this behalf, or of some other Court to which that Court is subordinate.]

(2) Where a complaint has been made by a public servant under clause (a) of sub-section (1) any authority to which he is administratively subordinate may order the withdrawal of the complaint and send a copy of such order to the Court; and upon its receipt by the Court, no further proceedings shall be taken on the complaint: Provided that no such withdrawal shall be ordered if the trial in the Court of first instance has been concluded.

(3) In clause (b) of sub-section (1), the term "Court" means a Civil, Revenue or Criminal Court, and includes a tribunal constituted by or under a Central, Provincial or State Act if declared by that Act to be a Court for the purposes of this section.

(4) For the purposes of clause (b) of sub-section (1), a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from the appellable decrees or sentences of such former Court, or in the case of a Civil Court from whose decrees no appeal ordinarily lies, to the principal Court having ordinary original civil jurisdiction within whose local jurisdiction such Civil Court is situate: Provided that-

(a) where appeals lie to more than one Court, the Appellate Court of inferior jurisdiction shall be the Court to which such Court shall be deemed to be subordinate;

(b) where appeals lie to a Civil and also to a Revenue Court, such Court shall be deemed to be subordinate to the Civil or Revenue Court according to the nature of the case or proceeding in connection with which the offence is alleged to have been committed."

¶10Thus, in respect of offences punishable under Sections 172 to 188 IPC or abetment, the Court can take cognizance only on a complaint in writing of the public servant concerned or some public servant to whom he administratively subordinate. The prohibitory orders are issued by the executive Magistrates. In this case, the FIR was registered by a police report, on which the charge sheet has been filed, therefore, the charge sheet can not be treated to be a complaint.

¶11In view thereof, taking cognizance for offence under Section 188 IPC by the learned Magistrate is hit by Section 195 Cr.P.C. and, therefore, the order taking cognizance for offence under Section 188 IPC against the petitioners on a police report is unsustainable and the same is hereby by set aside.

¶12Section 171-H IPC would read as under:- "171-H Illegal payments in connection with an election.-- Whoever without the general or special authority in writing of a candidate incurs or authorises expenses on account of the holding of any public meeting, or upon any advertisement, circular or publication, or in any other way whatsoever for the purpose of promoting or procuring the election of such candidate, shall be punished with fine which may extend to five hundred rupees: Provided that if any person having incurred any such expenses not exceeding the amount of ten rupees without authority obtains within ten days from the date on which such expenses were incurred the approval in writing of the candidate, he shall be deemed to have incurred such expenses with the authority of the candidate."

¶13It would be apt to extract Section 269 IPC, which reads as under:- "269. Negligent act likely to spread infection of disease dangerous to life.-- Whoever unlawfully or negligently does any act which is, and which he knows or has reason to believe to be, likely to spread the infection of any disease dangerous to life, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both."

¶14Considering the aforesaid facts, this Court is of the view that the offences under Sections 171-H and 269 IPC are also not attracted against the petitioners in the facts and circumstances of the case.

¶15In view thereof, the present petition is allowed and the cognizance and summoning dated 27.5.2023 and the entire proceedings of Case No.7486 of 2023 arising out of Case Crime No.51 of 2022, under Sections 171-H and 269 IPC and Section 3 of the Epidemic Diseases Act, 1897, Police Station Kotwali Bikapur, District Ayodhya, pending in the court of Chief Judicial Magistrate, Faizabad (Now Ayodhya), so far it relates to the petitioner, are hereby quashed. Order Date :- 23.6.2023 Rao/- High Court of Judicature at Allahabad, Lucknow Bench