IN THE HIGH COURT OF JUDICATURE AT PATNA CR.MISC. NO.38242 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 06.05.2006 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. 231 of 2005. The allegation in the First Information Report is that the Officer-in-charge, Lalganj Police Station has instituted a case in the Police Station in which it has been alleged that when he reached at the house of Muni Devi Mukhiya, he saw Tata 407 Maxi bearing No. BR-31 8515 carrying 25-30 persons on 20.10.2005. The allegation is that the vehicle in question did not have any paper showing permission for being used for the purpose of election campaign. The cognizance has been taken under 2 Section 133 of the Act. Section 133 of the Act refers to “any corrupt practice” specified in Clause (5) of section 123 at or in connection with an election. Clause (5) of Section 123 of the Act reads as follows: “123. Corrupt practices.- The following shall be deemed to be corrupt practices for the purposes of this Act:- (5) The hiring or procuring, whether on payment or otherwise, of any vehicle or vessel by a candidate or his agent or by any other person with the consent of a candidate or his election agent, or the use of such vehicle or vessel for the free conveyance of any elector (other than the candidate himself, the members of his family or his agent) to or from any polling station provided under Section 25 or place fixed under sub-section (1) of section 29 for the poll: Provided that the hiring of a vehicle by an elector or by several electors at their joint costs for the purpose of conveying him or them to and from any such polling station or place fixed for the poll shall not be deemed to be a corrupt practice under this clause if the vehicle or vessel so hired is a vehicle or vessel not propelled by mechanical power: Provided further that the use of any public transport vehicle or vessel or any tramcar or railway carriage by elector at his own cost for the purpose of going to 3 or coming from any such polling station or place fixed for the poll shall not be deemed to be a corrupt practice under this clause.” On the plain reading of sub-section (5) of Section 123 of the Act, it would appear that the candidate or his agent is not entitled to hire or procure any vehicle for the purpose of free conveyance of any elector to any polling booth provided under Section 25 and section 29(1) of the Act. It may be stated here that the election for the Lalganj Assembly Constituency was to be held on 26th October, 2005. Obviously, the Tata 407 vehicle was not being used for the purposes described in Section 123(5) of the Act on the date of occurrence i.e. 20.10.2005, the vehicle in question was not being used for the purposes of carrying peoples to the polling booth as no voting was to take place on 20.10.2005. The facts speak for themselves and as such I find that no offence under Section 133 of the Act is made out against the petitioner. Since there is no violation of Sections 133 and 125(5) of the Act, the petitioner cannot be said to have committed an offence under Section 188 of the Indian Penal Code which is disobeying an order which is 4 issued by a public servant. In the facts aforesaid, the order dated 06.05.2006 passed in Lalganj Police Station Case No. 231 of 2005 is hereby quashed. In the result, this application is allowed. Anand ( Sheema Ali Khan, J.)