IN THE HIGH COURT OF JUDICATURE AT PATNA CR.MISC. NO.38257 OF 2009 BHARAT PRASAD SINGH. SON OF LATE ACHHE LAL SINGH, RESIDENT OF VILLAGE HUNSI KEWAL, POLICE STATION LALGANJ, DISTRICT VAISHALI VERSUS THE STATE OF BIHAR ********* FOR THE PETITIONER :- MR. SHAMBHU PRASAD SINGH, ADV. FOR THE S T A T E :- MR. MAYANAND JHA, APP *********** 2 11/11/2009 Heard learned Counsel for the petitioner and the A.P.P. appearing on behalf of the State. The petitioner has challenged the order dated 18.02.2006 by which cognizance has been taken under Section 133 of the Representation of the People Act (hereinafter referred to as “the Act”) and Section 188 of the Indian Penal Code in Sadar Lalganj Police Station Case No. 225 of 2005. The allegation in the First Information Report is that at about 11:45 AM, a black sumo vehicle bearing registration no. BR-06D-2052 was moving with a blckcolour flag carrying 4-5 persons. The informant stopped the vehicle and asked the driver to produce the documents showing that the vehicle has permission to be used for the purposes of campaign in the election. The driver is said to have pointed towards the front glass of the vehicle and stated that the permission was stuck on the glass. On the basis of the aforesaid allegations, 2 the informant has instituted a case, arrested the driver of the vehicle and seized the vehicle in question. It is alleged that the candidate has not followed the code of conduct and the rules which are required to be followed for the purposes of conducting campaign. It is also alleged that there was a violation of Section 144 of the Code of Criminal Procedure and despite declaration of 144 proceedings, there were more than four persons in the vehicle. In this case, the Court below has taken cognizance under Section 133 of the Representation of the People Act and Section 188 of the Indian Penal Code. Learned Counsel for the petitioner submits that as far as the allegation that more than four persons were on the vehicle in question which was stopped by the informant, the informant ought to have taken the persons into custody or at least made them accused in this case. The petitioner, on the other hand, has been made accused in this case, although he was not on the vehicle in question, only because he was the candidate belonging to the said area. It is submitted that the order of cognizance, therefore, is misplaced and cognizance ought to have been taken against the persons who had violated the provisions of Section 144 of the Code of Criminal Procedure and then only Section 188 of the 3 Indian Penal Code would be applicable in this case. Section 133 of the Representation of the People Act would likewise not be applicable in this case as it envisages that “ a vehicle cannot be used by the agent or by the candidate contesting the election for the purpose of carrying the electors to the polling booth or the place specified free of cost”. No such allegation has been made out against the petitioner or for that matter against any of the persons named in the First Information Report. It may also be noted that the election was to be held on 26th October, 2005 whereas the occurrence has taken place on 16th October, 2005. Therefore, the provisions of Section 133 of the Act would not be applicable in the facts of this case. For the reasons aforesaid, the order dated 18.02.2006 passed in Lalganj Police Station Case No. 225 of 2005 is hereby quashed. In the result, this application is allowed. AFR/Anand ( Sheema Ali Khan, J.)