26 Oct 2020 3:54 PM GMT
The Gujarat High Court on Monday (26th October) quashed and set aside a criminal complaint filed against State Home Minister Pradipsinh Jadeja for the alleged violation of the model code of conduct during the 2007 Gujarat Assembly polls when he fought elections from Asarwa seat in Ahmedabad as a BJP candidate.The Bench of Justice Ilesh J. Vora gave this order in a petition filed by...
The Gujarat High Court on Monday (26th October) quashed and set aside a criminal complaint filed against State Home Minister Pradipsinh Jadeja for the alleged violation of the model code of conduct during the 2007 Gujarat Assembly polls when he fought elections from Asarwa seat in Ahmedabad as a BJP candidate.
The Bench of Justice Ilesh J. Vora gave this order in a petition filed by Jadeja, seeking quashing of the criminal complaint filed against him under Section 127A(1), 127A(2)(a) punishable under Section 127A(4) of the Representation of the People (RP) Act.
Jadeja, in his application filed under Section 482 of CrPC, had also sought orders to quash and set aside the summoning order (under Section 204 CrPC) passed by Additional Chief Metropolitan Magistrate order in December last year to face trial in the case.
The case against Jadeja
One Mr. Pankaj Shah, the President of Ahmedabad City Congress Committee submitted an application in the form of complaint addressed to District Election officer and Collector Ahmedabad, alleging that after declaration of the election, the applicant (Jadeja) had distributed the pamphlet during Navratri period.
It was further alleged by Mr. Shah, that there was a photograph of the applicant (Jadeja) displaying on the pamphlet, containing party symbol – Lotus along with printed slogan – 'Aapnu Gujarat' and 'Aagvu Gujarat' (our Gujarat – different Gujarat).
On receiving the complaint, the Court of Metropolitan Magistrate ordered the investigation by Meghaninagar Police Station, Ahmedabad and directed to submit the investigation report within stipulated period under Section 202 of Cr.P.C.
The investigating officer submitted a report on 30.12.2007 along with statements of Shri Pankaj Shah and Mr. V.V. Tomar, concluding that they are unable to find out the name of the printer and publisher of the pamphlet and also it was not established that who had distributed the pamphlet.
Upon receiving the investigating report from Meghaninagar Police Station, the Magistrate, vide order dated 21.12.2019 issued process under Section 204 of Cr.P.C., for the offences punishable under Section 127A(1) and 127A(2)(a) punishable under Section 127A(4) of the Act.
The Magistrate while issuing the process, had mainly considered the credibility of the District Election Officer, who has directed the Returning Officer to file the complaint.
Arguments put forth
The Senior Counsel appearing for the applicant vehemently argued that the questioned pamphlet couldn't be termed as "election pamphlet" within the meaning of Sub-section (3) (b) of Section 127A of the Act.
He further submitted that the learned Magistrate while issuing the process, instead of examining the provisions of RP Act, as well as the material of investigation, he heavily relied upon the allegations made in the complaint and considered the position of the District Election Officer, which shows that before issuing summon, the learned Magistrate had not applied his mind properly.
The Advocate appearing for the Returning Officer – respondent no. 2 – Prakash Makwana, who filed the private complaint, submitted that the complainant being a Returning Officer in the General Election of Gujarat Legislative Assembly for 72 Asarva Constituent Assembly, had filed the complaint on the basis of instruction given by District Election Officer.
Therefore, it was argued that though the complainant was not having any personal knowledge regarding the alleged incident but he acted in his official capacity to comply with the direction of the Superior Authority.
It was also submitted that there was a prima-facie material to proceed with the complaint and therefore, he contended that the trial Court had not committed any error.
The Court was of the opinion that the Magistrate had committed grave error while issuing summon and passed the order to register complaint against the applicant to face the trial under the provisions of Section 127A(1), 127A(2)(a) punishable under Section 127A(4) of the Act.
The Court said,
"A bare reading of Section 127A(1) read with two statements of witnesses as well as inquiry report, no any prima-facie offence for the aforesaid offences having been disclosed against the applicant."
The Court perused the contents of the pamphlet, and remarked,
"It contained religious phrases, songs and Aartis of Goddess Ambey Ma along with the name of applicant and also contained the map of State of Gujarat, symbol of applicant's party along with slogan, titled as 'Aapnu Gujarat' (our Gujarat) Aagvu Asarva (distinct and different Asarva). It further appears that the photograph of the applicant is also displaying on the pamphlet."
The Court also examined the legal provision [Section 127A(3)(b) of RP Act] which defines the ''election pamphlet''.
Section 127A(3)(b): "election pamphlet or poster" means any printed pamphlet, hand-bill or other document distributed for the purpose of promoting or prejudicing the election of a candidate or group of candidates or any placard or poster having reference to an election, but does not include any hand-bill, placard or poster merely announcing the date, time, place and other particulars of an election meeting or routine instructions to election agents or workers."
Having perused the above-mentioned Section, the Court observed that it couldn't be said that it is ''election pamphlet'' within the meaning of Section 127A(3)(b).
"The pamphlet does not contain the promotion of the election or any election agenda nor any reference to the election notified. Once it is found that the offending material – pamphlet cannot be said to be an ''election pamphlet'', as defined under Section 123A(3)(b) of the Act, it could not be said that prima-facie case is made out against the applicant for the offences under Sections 127A(1), 127A(2)(a) punishable under Section 127A(4) of the Act."
Lastly, the Court said,
"A bare reading of the complaint, it is not alleged that applicant has published, printed and distributed the ''election pamphlet''. When this Court finds that the pamphlet, cannot be said to be an ''election pamphlet'', as defined under provision of Section 127(3)(b) of the Act, 1951, the learned Magistrate materially erred in taking cognizance and issuing summon against the applicant. Similarly, there is no prima-facie evidence for the offence under Section 127 A(2)(a)."
Thus, the Court concluded that the continuation of proceedings against the applicant to face the trial for aforesaid offences would nothing but abuse of process of law and harassment and this is a fit case to exercise the power under Section 482 of Cr.P.C. to quash the impugned order dated 21.12.2019 as well as proceedings of Criminal Case No. 114499 of 2019.
Consequently, the impugned order dated 21.12.2019 summoning the applicant and directing to register the complaint for the offences under Section 127A(1), 127A(2)(a) punishable under Section 127A(4) of the Act, 1951 and proceedings of Criminal Case No. 114499 of 2019 was thereby quashed and set aside.
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