Criminal Appeal No. 2893 of 2010 · Andhra Pradesh High Court

This Criminal Petition is filed under Section 482 Cr.P.C. to quash proceedings in C.C.No.360 of 2009 (C.C.) on the file of the

Court of IV Additional Judicial Magistrate of First Class, Kakinada, registered for offences punishable under Sections 171-E and 188 r/w 34 IPC and Section 123(2) of Representation of the Peoples Act, 1951 (for short ‘RP Act’), so far as the petitioners herein are concerned.

Whereas the petitioners herein are A-1 to A-5 the respondent herein is the State representing the complainant in the C.C. For convenience, I refer the parties as arrayed in the C.C.

It is necessary to note briefly the allegations and pleadings made in the complaint for proper appreciation of the matter, they are as follows: A-1 to A-4 are the residents of Timmapuram village and A-5 is a native of Nidadavolu, but resident of Kakinada Town. A-5 filed nomination to contest as Praja Rajyam Party MLA candidate for Kakinada Rural Assembly Constituency. On 17-04-2009 A-1 to A-4, being the supporters and henchmen of A-5, invited the voters of Suryaraopeta, which comes under the jurisdiction of Kakinada Rural Assembly constituency, and arranged dinner at CAPCO layout in Satish Chandranagar at Timmapuram in order to influence them to cost their votes for A-5. Accordingly the voters of Suryaraopeta attended the dinner where A-1 to A-5 supplied liquor to them. While A-1 to A-5 were taking dinner, on information, the Inspector of Police, Kakinada Rural, raided the place in the presence of mediators and seized tent articles, motor vehicles and vessels under cover of mediators report on the basis of which they registered the case in Crime No.39 of 2009 on their file for the alleged offences.

Learned counsel for the accused has contended that so far as the offences punishable under Sections 171-E and 188 IPC are concerned, the complaint for those offences was filed by the Inspector of Police but as the State Election Commission had issued necessary election notification, by virtue of Section 195(1) Cr.P.C. the Election Commissioner or any other authority, who was subordinate to him and who was delegated the powers of filing the corresponding complaint, only got authority to file the complaint in writing and therefore, the complaint filed by the Inspector of Police is not tenable and accordingly, the proceedings are liable to be quashed.

Section 195 (1) Cr.P.C. which is relevant here reads as follows: for contempt of Prosecution 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; By virtue of this provision, the prosecution could be launched only by way of filing a written complaint by the authority whose authority was violated. There is no dispute that the Election Commissioner issued necessary notification and as such as per the allegations made by the prosecution, his authority was violated by reason of which he or any authority subordinate to him and to whom necessary delegation of power was made only got authority to file a written complaint for the prosecution of the accused in the case for the offences punishable under Sections 171-E and 188 IPC. So the Inspector of Police, Kakinada Rural, got no authority to file the charge sheet before the Court. Further apart from that Section 123(2) of RP Act is not a penal provision and it is only regarding the disqualification of a candidate. It does not speak of imposition of any punishment for any violation in respect of a criminal charge. Therefore, prosecuting A- 1 to A-5 under this section does not arise at all.

For the reasons discussed above, the proceedings are to be quashed as prayed for.