IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr.M.M.O. No.4 of 2010. Date of decision:24.07.2010. Kewal Singh Pathania & Others ….Petitioners Versus State of H.P. ….Respondent Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 Yes. For the Petitioners: Mr.G.D.Verma, Senior Advocate with Mr.B.C. Verma, Advocate. For the Respondent: Ms.Ruma Kaushik, Additional Advocate General. Dev Darshan Sud,J. Four petitioners; namely; S/Shri Keval Singh Pathania, Chander Kumar, Neeraj Bharti and Smt.Vidya Stokes, out of whom, Shri Chander Kumar, Ex.Member of Parliament, Shri Neeraj Bharti, MLA and Smt.Vidya Stokes, MLA, have challenged the order passed by the learned Chief Judicial Magistrate on 7.5.2009, summoning them to face trial for offences under Section 188 of the Indian Penal Code. The order records that at the stage when it was issued on 7.5.2009 there is sufficient material to summon the accused for alleged offences. 1 Whether the reporters of Local Papers may be allowed to see the judgement? Yes. 2 2. In brief, it has been alleged that on 23.4.2009 at about 11.00 A.M. in the Court room of the Deputy Commissioner Shri Keshav Chand Chauhan, Member of LOJPA had filed his nomination papers. Thereafter, Shri Chander Kumar of the Congress Party filed his paper and he was present with 50/60 people. Shri Chander Kumar and six of his followers, entered the office and thereafter Shri G.S. Bali, MLA of the Congress Party, Shri Sat Mahajan, Ex.Minister Congress Party, Shri Neeraj Bharti, MLA of Guler Constituency, Shri Kewal Singh Pathania, Ex.State President of NSUI, Smt.Viplav Thakur, Ex.President, Congress Party, Himachal Pradesh, according to the complaint, forcibly entered the office of the Deputy Commissioner despite the fact that they were asked not to do so by the police/officers present. According to the prosecution, in terms of the notification issued by the Election Commission not more than five people could be present there. When the petitioners were stopped, they started arguing with the police personnel. They are thus charged of violating the Model Code of Conduct and a prayer made that they be prosecuted for offences under Section 188 of the Indian Penal Code. The complete list of witnesses including five witnesses Shri Pritam Singh Thakur, Additional Superintendent of Police, District Kangra, Ms.Veena Bharti, IPS Probation, Police Station, Dharamshala, ASI Prem Chand, HC Rakesh Gora No.869 and MHC Rajender Kumar No.60, was filed and 3 documentary evidence consisted of the complaint, rapat roznamcha, the letter issued by the Election Commission of India, two pages of the evidence of two witnesses. 3. The learned Magistrate has passed the summoning order which has now been challenged before this Court. 4. Learned Assistant Advocate General has taken preliminary objection on the maintainability of the petition. She submits that issuance of process cannot be challenged at this stage. Learned counsel appearing for the petitioners places reliance on the judgment of the Supreme Court in Pepsi Foods Ltd. and Another vs. Special Judicial Magistrate and Others, (1998)5 SCC 749, submits that this Court in exercise of powers under Section 482 of the Code of Criminal Procedure (hereinafter referred to as the `Code’) can itself quash the complaint as per provisions of Section 205 of the Code. In Pepsi Foods Ltd. (supra), the Supreme Court holds:- “28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the 4 evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinize the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused. 29. No doubt the Magistrate can discharge the accused at any stage of the trial if he considers the charge to be groundless, but that does not mean that the accused cannot approach the High Court under Section 482 of the Code or Article 227 of the Constitution to have the proceeding quashed against him when the complaint does not make out any case against him and still he must undergo the agony of a criminal trial. It was submitted before us on behalf of the State that in case we find that the High Court failed to exercise its jurisdiction the matter should be remanded back to it to consider if the complaint and the evidence on record did not make out any case against the appellants. If, however, we refer to the impugned judgment of the High Court it has come to the conclusion, though without referring to any material on record, that "in the present case it cannot be said at this stage that the allegations in the complaint are so absurd and inherently 5 improbable on the basis of which no prudent man can ever reach a just conclusion that there exists no sufficient ground for proceedings against the accused." We do not think that the High Court was correct in coming to such a conclusion and in coming to that it has also foreclosed the matter for the Magistrate as well, as the Magistrate will not give any different conclusion on an application filed under S. 245 of the Code. The High Court says that the appellants could very well appear before the Court and move an application under Section 245(2) of the Code and that the Magistrate could discharge them if he found the charge to be groundless and at the same time it has itself returned the finding that there are sufficient grounds for proceeding against the appellants. If we now refer to the facts of the case before us it is clear to us that not only that allegation against the appellants do not make out any case for an offence under Section 7 of the Act and also that there is no basis for the complainant to make such allegations. … … … … … …” (Pp 760-761) The submissions on the maintainability are, therefore, rejected. 5. Section 188 of the Indian penal Code provides:- “188. Disobedience to order duly promulgated by public servant-Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain 6 act, or to take certain order with certain property in his possession or under his management, disobeys such direction, Shall, if such disobedience causes or tends to cause obstruction, annoyance or injury, or risk of obstruction, annoyance or injury, to any person lawfully employed, be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to two hundred rupees, or with both; and if such disobedience causes or tends to cause danger to human life, health or safety, or causes or tends to cause a riot or affray, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both. Explanation-It is not necessary that the offender should intend to produce harm, or contemplate his disobedience as likely to produce harm. It is sufficient that he knows of the order which he disobeys, and that his disobedience produces, or is likely to produce, harm.” 6. The necessary ingredients, in order to constitute an offence, are:- “1. That there must be order promulgated by a public servant. 2. That the public servant must have been lawfully empowered to promulgate such order. 3. That a person having knowledge of such order and directed by such order (a) to abstain from a certain act, or (b) to take certain order with certain property in his possession or under his management, has disobeyed such direction. 7 4. That such disobedience causes or tends to cause (i) obstruction, annoyance, or injury, or risk of it, to any person lawfully employed, or (ii) danger to human life, health or safety, (iii) a riot or affray.” 7. In Chinnamuthu Ambalam vs. S.Jagannatha Chariar, AIR 1959 Madras 89, the Madras High Court, while dealing with these provisions has reiterated these provisions holding:- “(11) The evidence to prove the offence under S. 188 I.P.C. has been set out in Ratanlal’s Law of Crimes, 19th Edition, at page 450 as follows: “Prove (1) the promulgation of the order : State v.Sm. Tugla, (S) AIR 1955 All 423. (2) That it was promulgated by a public servant. Chandrakanta De, In the matter of ILR 6, Cal 445; Malappa Tavargi v. Emperor, 17 Bom LR 676 : (AIR 1915 Bom 22 (1); Hirala v. Emperor, 61 Ind Cas 237 : (AIR 1921 Oudh 123). (3) That such public servant was lawfully empowered to promulgate the same. Nagappa Thevan v.Emperor, ILR 602 : (AIR 1916 Mad 325), Bachuram Kar v.State, AIR 1956 Cal 102; Emperor v. Raghunath, ILR ILR 47 All 205 : (AIR 1925 All 165). (4) That such order directed the accused to abstain from a certain act, or to take certain order etc. (5) That the accused knew of such order, Queen v. Ramtonoo Singh, 12 Suth WR Cr. 49; Abelakh Lall v. Sirnam Singh, 15 Suth WR Crl. 50, Niharendu Dutt Majumdar v. Emperor, AIR 1939 Cal 703; AIR 1940 Pat 446; William Hudson v. Mrs. K.M. Webster, AIR 1937 Mad 565; Emperor v. Turab 8 Khan, AIR 1942 Oudh 39; Emperor v. Afaq Hussain, AIR 1941 All 70 (FB). (6). That he disobeyed such direction. (7) That such disobedience caused, or tended to cause, obstruction, annoyance or injury or risk of the same to a person lawfully employed; or that such disobedience caused, or tended to cause, danger to human life, health or safety; or that such disobedience caused, or tended to cause, riot or an affray.” Brojo Nath Ghose v. Empress, 4 Cal WN 226; Shyamanand Das v. Emperor, ILR 31 Cal 990; Ramgopal v. Emperor, ILR 32 Cal 793; AIR 1925 All 165; ILR 47 All 205; 26 Cr. L.J. 599. (12) To sum up the foregoing : A complaint in writing of the public servant concerned or of some other public servant to whom he is subordinate is required. A prosecution under this section should not be launched unless all the elements necessary for a conviction are present. A complaint for an alleged disobedience of the order under S. 144 Cr.P.C. must show that the disobedience caused or tended to cause obstruction, annoyance or injury or a riot : Jaswant v. State, AIR 1951 All 828, Srinivasiah v. Govt. of Mysore AIR 1961 Mys 121; Mt. Lachmi Devi v. Emperor, AIR 1931 Cal 122; N.G. Sabde v. The Crown, AIR 1950 Nag 12; Bharat Raut v. State, AIR 1953 Pat 376; 1953 Cr. LJ 1787; Dalganjan Koeri v. The State, AIR 1956 All 630.” (Pp.93-94) 8. It is not mere violation of the order which by itself will be an offence unless it entails one or more of the other consequences as stated therein. 9 9. In V.Subramaniam vs. 1970 Cr.L.J. 1111, the Madras High Court holds that mere disobedience of an order is not sufficient. Considering the necessary ingredients of the offence under Section 188 of the IPC, the Court holds that it is necessary that the disobedience should have caused or a tendency to cause danger to human life, health or safety. 10. To similar effect is the judgment of the Allahabad High Court in Dalganjan Koeri and Others vs. State, 1956 Cri.L.J. 1176. The Court, after consideration of the case law on record, ruled that every violation is not punishable, but only that disobedience which causes or tend to cause obstruction or is in the words of the majority, the gist of the offence:- “3. … … …The disobedience of an order promulgated by a public servant, which has been made punishable by S. 188, I.P.C. must be a disobedience which causes or tends to cause obstruction, annoyance or injury or risk of obstruction, annoyance or injury to any person lawfully employed. This also suggests that orders contemplated under S. 188 I.P.C. are orders made by public functionaries in the public interest. The disobedience of any order passed in favour of a party to the litigation by a court may result in annoyance to the party in whose favour it has been passed, but it cannot be said that it necessarily causes or tends to cause obstruction or annoyance or injury to any person. 10 We have carefully considered the language of the section and we are of opinion that S. 188 I.P.C. does not contemplate orders passed by civil or revenue courts in judicial proceedings. Any breach of such orders can be adequately dealt with under the provisions of the Code of Civil Procedure but cannot be said that they are orders promulgated within the meaning of S. 188, I.P.C. the disobedience of which would result into obstruction, annoyance or injury. (4) Our answer, therefore to the question referred to us is that orders passed in judicial proceedings by civil, revenue or criminal courts are not governed by S. 188, I.P.C.” (P.1178) 11. To similar effect is the judgment of the Calcutta High Court in Bachuram Kar and Others vs. The State, 1956 Cri.L.J. 515. 12. The High Court of Assam in Pradip Chowdhury vs. The State, AIR 1960 Assam 20, holds:- “(2a) ……………………………………………………………… The contention is that mere disobedience of an order promulgated under Section 144 Cr.P.Code will not be an offence under Sec. 188, Indian Penal Code, unless the prosecution further proves that as a result of the disobedience there was an obstruction, annoyance or injury, caused or the disobedience tends to cause such obstruction or annoyance. Unless the consequence of the act of disobedience is proved, a person cannot be convicted under Section 188, Indian Penal Code. No 11 objection can be taken to this proposition of law. The words of S. 188, Indian Penal Code are clear enough to point out that mere disobedience is not an offence under Sec. 188, Indian Penal Code. …………………” (P.21) 13. The High Court of Mysore in D.N. Ramaiah and Others vs. D.R. Aswathanarayana Setty and Others, 1972 Cri.L.J. 1158, affirms this view holding:- “11. Annoyance caused to the petitioners is not in law that annoyance contemplated in the second paragraph of Section 188 I.P.C. Proceedings under Section 145, Criminal P.C. are institute and held and possession of immovable property in a particular person is declare declared as it is necessary in order to maintain public peace. If no question of breach of peace arises, no proceeding under Section 145 Criminal P.C. can be instituted. Hence proceedings under Section 145 Criminal P.C. are not mainly intended for the benefit of a particular party, but are mainly intended to maintain public peace in a locality in question. Therefore, disobedience contemplated in Section 188 I.P.C. is that type of disobedience which affected the very purpose for which such order was promulgated. “ (P.1159) 14. I need not multiply precedent any further. Number of arguments has been addressed by the learned counsel appearing for the parties. 12 15. From the record it is sought to be established that the order of the Election Commission which was violated is prima facie established to have been made public. For this purpose, reliance has been placed by the learned counsel on the letter dated 9th February, 2007 addressed by the Election Commission of India to the Chief Electoral Officers of all the States and Union Territories which states that:- “All District Officers may inform various political parties and interest groups that the maximum number of vehicles that will be allowed to come within the periphery of 100 mtrs. Of Returning Officers/Assistant Returning Office4s office shall be three and maximum number of persons that will be allowed to enter the office of Returning Officers/Assistant Returning Officers at the time of filing nomination shall be the candidate plus four other individuals which may include any prosper/proposers proposing the nomination of the candidate i.e. there can be only five people (including the candidate) who can remain present inside the Returning Officers/Assistant Electoral Registration Officers room at the time of filing nomination. The expenditure on the vehicles that will be coming along with the candidate at the time of the filing of nominations shall be taken into account for calculating his expenditure if he remains in the fray.” 16. I have gone through the complaint and have noted its contents. I do not find that any of the 13 ingredients under Section 188 of the Indian Penal Code are satisfied. Reliance is placed by the learned Additional Advocate General on Annexure R-I, as filed with the petition, stating that the instructions/notification were made public, because on 12.3.2009 a meeting of all the representatives of political parties etc. was held. This contention cannot be accepted. Annexure-A to this document does not show the presence of anybody from the political parties, except those of the BJP party workers. Other persons present were officials. 17. Annexure R-II, even if it be presumed to have been made public, it cannot be said that the mere presence of more than 6/7 persons inside the Returning Officer hall, is per se cognizable under Section 188 of the Indian Penal Code. I also cannot comprehend as to why Election Commission or its representatives or officers have not come forward to file the complaint. The prima facie scrutiny of the material on the record reveals that no case is made out and the continuance of the proceedings against the petitioners would be an abuse of the process of law. This petition is accordingly allowed. The complaint instituted against the petitioners herein is quashed and set aside and the consequential summoning order is also quashed and set aside. July 24, 2010. (Dev Darshan Sud) (aks) Judge.