THE HON’BLE SRI JUSTICE G.BHAVANI PRASAD CRIMINAL PETITION No.7899 of 2009 DATED:24.09.2009 Between: Badiga Ramakrishna .. Petitioner And The State of Andhra Pradesh, rep., by Sub Inspector of Police, Kuchipudi P.S., Krishna District rep., by its Public Prosecutor, High Court of Andhra Pradesh .. Respondent THE HON’BLE SRI JUSTICE G.BHAVANI PRASAD CRIMINAL PETITION No.7899 of 2009 ORDER: Heard Sri C.Padmanabha Reddy, learned Senior Counsel for the petitioner, and Sri A.Ramesh, learned counsel representing the learned Public Prosecutor for the sole respondent. The petitioner is facing prosecution along with two others in C.C.No.283 of 2009 on the file of the Additional Judicial Magistrate of First Class, Avanigadda, Krishna District for the offences punishable under Sections 171-H and 188 of the Indian Penal Code in Cr.No.78 of 2009 of Kuchipudi Police Station. The charge sheet filed by the Sub Inspector of Police alleged about the violation of the model code of conduct by the petitioner on 17.04.2009 by using two vehicles without valid permission from the Returning Officer, which was detected by the Observer for Machilipatnam Parliamentary Constituency. On the report of the said Observer, the Returning Officer gave information to the police, who registered the crime. Section 171-H of the Indian Penal Code is about illegal payments in connection with an election and a person who incurs or authorizes expenses without a general or special authority of a writing of a candidate becomes liable for punishment under the said provision and the express language of the provision does not appear to encompass within its scope, the candidate himself. The grammatical meaning to be given to the plain and unambiguous expressions used in the provision, thus, does not appear to provide any scope for the prosecution of the petitioner himself under the said penal provision. Insofar as, the offence under Section 188 of the Indian Penal Code is concerned, a Court can take cognizance of the same only on the complaint in writing of the public servant concerned or of some other public servant to whom he is an administratively subordinate in the light of Section 195(1)(a) of the Code of Criminal Procedure. The allegations in the charge sheet are about detection of violation of model code of conduct by the Observer for the Parliamentary Constituency, who passed on information to the Returning Officer. Even if the Election Commission of India could not have complained, either the Observer or the Returning Officer would have been the appropriate persons, who could have filed a complaint on a reasonable interpretation of the reference to the public servant under Section 195(1)(a) of the Code of Criminal Procedure as referring to such public servants enforcing the model code of conduct. It could never have been the Sub Inspector of Police, who filed the charge sheet/complaint and the cognizance of the offence under Section 188 of the Indian Penal Code by the Court on the complaint/charge sheet of the Sub Inspector is unsustainable. Continuance of the criminal proceedings against the petitioner, therefore, appears to be an abuse of process of law and the inherent jurisdiction of this Court has to be therefore invoked. Therefore, the further proceedings in C.C.No.283 of 2009 on the file of the Additional Judicial Magistrate of First Class, Avanigadda, Krishna District are accordingly quashed and the Criminal Petition is allowed. ___________________ G. BHAVANI PRASAD, J 24th September 2009 KH