The Allahabad High Court has set aside the cognizance/summoning order issued against Abbas Ansari, son of Purvanchal mafia Mukhtar Ansari, terming it illegal.
A Single Bench of Justice Raj Beer Singh passed this order while hearing an application under Section 482 filed by Abbas Ansari and Another.
The application under Section 482 Cr.P.C has been filed for quashing the charge-sheet dated 30.4.2022 filed in Case under Sections- 188, 177-H IPC and Section-133 of the Representation of People Act, 1950, P. S-Dakshin Tola, district-Mau and also to quash the cognizance and summoning order dated 6.1.2023 passed by ACJM/ S. D, Mau in aforesaid case.
Counsel for the applicants submitted that no prima facie case is made out against the applicants. The first information report was lodged against applicant no 1 and unknown persons, alleging that on 22.2.2022 the applicant no 1 along with his supporters carrying several vehicles was convessing in election. As the Election Model Code of Conduct was in force, the applicant no 1 was asked to produce passes of vehicles, but he failed to produce any pass.
Counsel further submitted that for prosecution of a person under Section 188 IPC, a complaint has to be filed in terms of Section 195 CrPC but in the case, no such complaint has been filed and thus the summoning of applicants / accused under Section 188 IPC is against the provisions of law. Referring to the provisions of Section 171-H IPC, it was submitted that there is absolutely no material or allegation that any person was incurring or authorizing expenses of amount of holding any public meeting or upon any advertisement circular or publication or in any other way for promoting elections of such candidate and thus, no offence under Section 171-H is made out. The provisions of Section 133 of the Representation of People Act, 1950 were also referred and it has been pointed out that there is no material to make out a case under Section 133 of the Representation of People Act.
Counsel also submitted that the summoning of the applicant under Section 188 IPC is barred by the provisions of Section 195 CrPC and that no ingredients of offence under Section 171-H IPC and Section 133 of the Representation of People Act, 1950 are satisfied, thus, no prima facie case at all is made out against the applicants. The trial Court failed to consider the material and position of law while passing impugned cognizance / summoning order.
It was submitted that the impugned order has been passed in a mechanical manner without considering the material on record and thus, the impugned charge-sheet and proceedings are liable to be quashed.
AGA has opposed the application and submitted that the material collected during investigation has to be considered by the trial Court during trial and that at this stage it cannot be said that no prima case is made out. The submission of charge-sheet and taking cognizance by the Court cannot be said an abuse of process of law. The applicants have committed the crime in question and after through investigation, the investigating officer has submitted charge-sheet. The applicant no1 has criminal history of nine cases and similarly, applicant no 2 has criminal history of seven cases. The first information report was lodged on true and correct facts and the allegations made in the first information report have been substantiated during investigation. In view of the material collected during investigation, it cannot be said that no prima facie case is made out against the applicants.
The Court observed that,
It is apparent from the aforesaid provisions that if any person is guilty of any corrupt practice as specified in Clause (5) of Section 123 at or in connection with election, he shall be punishable with imprisonment, which may extend to three months and with fine. Sub-section (5) of Section 123 provides that 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 shall be considered as a corrupt practice.
In the matter, there are clear allegations that the applicants were convessing in five vehicles and when the applicant no 1 was asked to produce pass for moving said vehicles, he could not produce any such pass. The witnesses examined during investigation have also supported the said allegations that the applicants were found convessing in five vechiles and they could not produce any pass for plying those vehicles for convessing. The question whether the vehicles were being plied in convessing in relation to election or otherwise, is a question of fact, which can only be decided during trial.
In the affidavit of the applicant filed in support of this application, it has been mentioned that applicant no 1 was a candidate of Suheldev Bhartiya Samaj Party for assembly election from Mau constituency and the elections were going to be held on 7.3.2022 and as per notification dated 10.2.2022 the Election Commission of India has enforced Model Code of Conduct in several areas, including Mau constituency.
In view of this fact, it cannot be said that no prima facie case under Section 133 of the Representation of People Act is made out. However, in the Representation of People Act it is not specified whether the offence under Section 133 is cognizable or not cognizable and thus, in view of the First Schedule of CrPC, offence under Section 133 of the Representation of People Act has to be treated as non- cognizable offence as it is punishable with imprisonment, which may extend to three months and with fine only. In view of Explanation of Clause (d) of Section 2 Cr P C report made by a police officer in a case which discloses after investigation, the commission of non-cognizable offence, shall be deemed to be a complaint.
“In view of aforesaid, it is clear that no prima facie case under Section 171 H IPC is made out and that summoning of the accused / applicants under Section 188 IPC is hit by the provisions of Section 195 CrPC. However, it cannot be said that no offence under Section 133 of the Representation of People Act is made out. Thus, no case for quashing of the charge-sheet or entire proceedings is made out. However, impugned summoning order is not in accordance with law”, the Court further observed while disposing of the application.
In view of the aforesaid, the Court set aside the cognizance/summoning order dated 6.1.2023 and the matter is remitted back to the trial Court concerned with the direction to pass an order on summoning afresh in accordance with law.