Criminal Miscellaneous No.1397 of 1999 -------- In the matter of an application under section 482 of the Code of Criminal Procedure ------------ Rajendra Prasad Singh son of Sri Sakaldeep Singh, resident of village – Dasrath Khap, P.S. Madanpur, Distt. Aurangabad A/P Senior Advocate, Patna High Court .. ... Petitioner Versus THE STATE OF BIHAR .... ... Opposite party ----------- For the petitioner: Mr. Krishna Prasad Singh, Sr. Advocate For the State: Lala Kailash Bihari Prasad, Sr. Advocate P R E S E N T THE HON'BLE MR. JUSTICE SHIVA KIRTI SINGH Shiva Kirti Singh, J. Heard learned counsel for the petitioner and learned counsel for the State. Petitioner has prayed for quashing of entire criminal proceeding including the order dated 9-2-1998 passed by the Chief Judicial Magistrate, Aurangabad in G. O. case no. 5/98, Trial No. 853/98 in a case under section 133 of the Representation of Peoples Act, 1951 which is pending for trial before the Chief Judicial Magistrate, Aurangabad. According to FIR lodged by Officer Incharge of Deo Police Station on 4-2-1998, in course of Parliamentary election the informant while he was near village Malhara on Baluganj Deo road with the Block Development Officer, Deo, he noticed a white coloured trekker bearing No. BR-26P/ 0069 coming from the village Baluganj with flag of Indian National Congress. The 2 vehicle stopped on signal but except the driver all the occupants ran away. The driver disclosed his name as Naresh Prasad and name of the owner of the vehicle as Ramjee Prasad. Allegedly he could not produce any valid paper for participating in election work but disclosed that the jeep had been hired by the petitioner for use in relation to the election work as the petitioner was a candidate in the election of Indian National Congress party. The informant seized the vehicle and lodged a case u/s 133 of the Representation of Peoples Act. Learned counsel for the petitioner has submitted that in an earlier election in Aurangabad district in the year 1996 an identical case was lodged against one Satendra Narayan Singh which was quashed by a Bench of this Court by order dated 11-4-1997. A copy of that judgement and order has been annexed as annexure-2. A perusal of the judgment contained in annexure-2 shows that this court examined the ingredients of section 133 and reading the same with section 123 (5) it held that it is necessary for the prosecution to allege that hiring of vehicle or vessel was by a candidate or his agent or by any other person with the consent of a candidate or his election agent and the corrupt practice, which was the essence of the offence, would be attracted only if the vehicle engaged by a candidate was found carrying voters contrary to provisions of the Representation of Peoples Act. In that case it was held, in identical situation that there was no material showing 3 allegation or evidence that the vehicle was being used for carrying voters attracting definition of corrupt practice. It was further held that if the supporters of a candidate without consent of a candidate indulged in corrupt practice it cannot attract Section 123(5) of the R. P. Act. In this case also it is noticed that there is no allegation against the petitioner that he was involved in carrying voters directly or had given his consent for the same. In fact except the driver who disclosed the name of owner of the vehicle nobody else could be identified who could be described as voter being carried on the vehicle in question. In view of aforesaid discussion and finding, the prayer made in this application is allowed and the entire criminal proceeding against the petitioner pending vide G.O. case no. 5/98, Trial No. 853/98 before Judicial Magistrate, Ist class, Aurangabad is quashed. Patna High Court The 21st April, 2010 NAFR/BKS (Shiva Kirti Singh, J.)