THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL PETITION No. 7280 of 2009 Date: 22-03-2011 Between: Gali Arun Raj … Petitioner A n d The State of A.P., Rep. By Public Prosecutor … Respondent THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL PETITION No. 7280 of 2009 ORDER: The petitioner/A1 is accused of offences punishable under Sections 171-H and 188 I.P.C. in C.C.No.163 of 2009 on the file of Additional Judicial Magistrate of the First Class, Kandukur, along with two others. It is alleged that on 22-04-2009 at 19:00 hrs when the patrolling party consisting of witness Nos.1,2,3 and 5 were moving in Kamepalli Village to control Law and Order during general election period, they found Indica Car bearing No.AP-27H- 2817 and that there were A1 to A3 and the Driver (witness No.4) in that car and they tried to escape and that the police stopped them and enquired them, arrested A1 to A3 and seized the car together with Rs.1,48,000/- therein under the cover of police proceedings. According to the prosecution, the said cash is unauthorized cash meant for distribution to the voters in the elections to get favour to A1’s wife who was contesting as Praja Rajyam Party candidate. 2. On the basis of the police proceedings, the Sub- Inspector of Police registered case in Crime No.54 of 2009, took up investigation and then filed charge sheet in the lower Court. It is contended by the petitioner’s counsel that in this case, police panchanama was prepared by the same Sub-Inspector who registered the case and investigated into the case and filed charge sheet in the lower Court and that it is illegal. There is no investigation worth mentioning in this case, except detection of the offence, arrest of the accused and seizure of car and the cash. Statements of the accused and the car driver were recorded then and there itself. The alleged confessional statements of the accused are irrelevant and become inadmissible in view of Sections 25 and 26 of the Evidence Act. There is no material which is saved by Section 27 of the said Act in this case. Thus, this is only a case of detection and filing of charge sheet. 3. Insofar as offence under Section 188 I.P.C is concerned, in view of the bar contained under Section 195(1)(a)(i) Cr.P.C, the lower Court should not have taken cognizance of the case for the said offence when the complaint was not instituted by the public servant who promulgated the order which was stated to have been defied by the accused. Therefore, charge sheet filed by the police for the offence under Section 188 I.P.C. against the petitioner/A1 is illegal. 4. Section 171-H I.P.C deals with illegal payments in connection with an election. The said provision reads as follows:- “Whoever without the general or special authority in writing of a candidate incurs or authorizes expenses on account of the holding of any public meeting or upon any advertisement, circular or publication, in any other way whatsoever for the purpose of promoting or procuring the election of such candidate, shall be punished with fine which may extend to five hundred rupees; Provided that if any person having incurred any such expenses not exceeding the amount of ten rupees without authority obtains within ten days from the date on which such expenses were incurred the approval in writing of the candidate, he shall be deemed to have incurred such expenses with the authority of the candidate.” 5. Though it is alleged by the prosecution that the seized amount of Rs.1,48,000/- was meant to be distributed to the public during an election, it was not the prosecution case that any of the accused, and more particularly A1, indulged in making payments on behalf of the contesting candidate. The alleged confessional statements of A1 contained in the police proceedings/panchanama cannot be acted upon as it is no legal evidence. Therefore, it remains that A1 to A3 were arrested while they were traveling in a car along with a cash of Rs.1,48,000/-. Mere possession of the said cash does not attract penal liability under Section 171-H I.P.C. Thus, the prosecution has no material much less legal material to satisfy the ingredients of 171-H in this case. Prosecution of A1 for the above offence, therefore, becomes abuse of process of law. 6. In the result, the Criminal Petition is allowed quashing proceedings in C.C.No.163 of 2009 on the file of Additional Judicial Magistrate of the First Class, Kandukur, Prakasam District, insofar as the petitioner/A1 is concerned. _____________________________ SAMUDRALA GOVINDARAJULU, J Date: 22nd March, 2011 KSM