Patna High Court: The present application was filed for quashing the FIR dated 16-04-2019, instituted for the offences punishable under Section 188 of the Penal Code, 1860 (‘IPC’) and Sections 123(3) and 125 of the Representation of People Act, 1951 (‘RP Act’) and the case was presently pending in the Court of ACJM, Katihar. Sandeep Kumar, J.*, opined that petitioner’s statement did not depict any communal tension and violence and it had only cautioned the people of Muslim community about dividing their votes by Owaisi and therefore, the allegation that petitioner was demanding votes on the name of religion was false. The Court opined that the offences as alleged under Section 188 of the IPC and Sections 125(3) and 125 of the RP Act were not made out and the entire prosecution of petitioner was illegal. The order taking cognizance 12-10-2020 and the issuance of summons were also quashed.
Background
The Opposite Party 2, informant alleged that on 15-04-2019, petitioner, Navjot Singh Sidhu addressed a public gathering organized by the Indian National Congress at the campus ground of Utkramit High School, Ghatta, Barsoi and while delivering his speech, petitioner violated the model code of conduct. The informant further alleged that petitioner violated the restraining orders while making appeal for votes on religious grounds. The FIR was instituted against petitioner and the charge-sheet dated 12-07-2020 under Section 188 of IPC read with Section 123(3) and 125 of RP Act was accordingly filed against petitioner.
Analysis, Law, and Decision
The Court noted that the FIR under Section 188 of IPC was filed based on a report submitted by the informant, who was the Assistant Engineer. The Court observed that under Section 195 of the Criminal Procedure Code, 1973 (‘CrPC’), there must be a complaint by the public servant whose lawful order was not complied with, and the complaint must be in writing. The provisions of Section 195 of the CrPC were mandatory, and its non-compliance would vitiate the prosecution and all other consequential orders/proceedings. The Court opined that since the complaint was filed against the mandatory provision of Section 195(1) of the CrPC, all subsequent action shall be held to be illegal i.e., the investigation and the cognizance pursuant to the registration of the FIR.
The Court opined that the Trial Court acted without jurisdiction and in violation of the provisions of CrPC in taking cognizance under Section 188 of IPC based on a police report and issuing summons to petitioner. Further, the investigating authorities acted without jurisdiction in registering an FIR based on a letter written by the informant, who was an Assistant Engineer, and who had not passed any order which had been violated by petitioner and both the Trial Court and the investigating authorities had acted without jurisdiction and authority and in complete violation of mandatory procedural law, as contained in Section 195(1) of the CrPC.
The Court observed that from the transcript of petitioner’s speech, petitioner only said that Owaisi Sahab had floated a new party and was trying to divide votes and win the election. The Court opined that the part of the speech on which the informant had relied upon to show that petitioner was asking for votes on the ground of religion did not support the allegation.
The Court opined that “petitioner did not make any statement which was prejudicial to the maintenance of harmony or was likely to disturb the public tranquility. From the content of the speech, it did not appear that petitioner had tried to promote feelings of enmity or hatred between two classes of people or two religions but in fact he had only said that Owaisi was trying to divide the votes of Muslims. Petitioner’s statement had not depicted any communal tension and violence. It had only cautioned the people of Muslim community about dividing their votes by Owaisi and therefore, the allegation that petitioner was demanding votes on the name of religion was false”.
The Court noted that for prosecuting petitioner under Section 123(3) of the RP Act, a person should appeal for voting or refrain from voting for any person on the ground as mentioned in Section 123(3) of the RP Act, 1951. The Court opined that in the present case, no such appeal was made by petitioner but he had only said about Owaisi floating a party for dividing the vote and thus petitioner could not be prosecuted under Section 123(3) of the Act.
The Court further noted that for prosecuting a person under Section 125 of the RP Act, the basic requirement was that the person should promote or had attempted to promote on grounds of religion, race, caste, community, or language, feelings of enmity or hatred between different classes of citizens of India. The Court opined that the ingredients of Section 125 of the RP Act were not made out against petitioner as the statements were not made to promote or attempting to promote on grounds of religions, race, caste, community or language, feelings of enmity or hatred between different classes of citizens of India.
The Court relied on Pepsi Food Ltd. v. Special Judicial Magistrate, (1998) 5 SCC 749 (‘Pepsi Food Case’) and opined that the order of issuance of summons after taking cognizance dated 12-10-2020 suffered from non-application of mind without following the law laid down by the Supreme Court in Pepsi Food Case (supra) as the summons were issued mechanically by a cryptic and non-specking order and therefore, the order taking cognizance and issuance of summons dated 12-10-2020 could not be sustained.
The Court opined that the offences as alleged under Section 188 of the IPC and Sections 125(3) and 125 of the RP Act were not made out and the entire prosecution of petitioner was held to be illegal. The order taking cognizance 12-10-2020 and the issuance of summons were also quashed.
[Navjot Singh Sidhu v. State of Bihar, 2023 SCC OnLine Pat 6186, decided on 12-12-2023]
*Judgment authored by: Justice Sandeep Kumar
Advocates who appeared in this case :
For the Petitioner/s: Ramakant Sharma, Senior Advocate; Rakesh Kumar Sharma, Santosh Kumar Pandey, Amresh Kumar, Advocates
For the Opposite Party/s: Jharkhandi Upadhyay, APP
Buy Penal Code, 1860 HERE
Buy Code of Criminal Procedure, 1973 HERE
