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Synopsis

The Jharkhand High Court has quashed criminal proceedings against Chief Minister of the State, Hemant Soren, who was accused of violating the model code of conduct, of the 2019 Lok Sabha elections. The HC was of the opinion that cognizance in such a case could not have been taken without a “written” complaint, which in the present case was missing.

Justice Sanjay Kumar Dwivedi was of the opinion, “there are no circumstances on record to show that the disobedience of the condition imposed on the petitioner would entail one or the other consequences mentioned in Section 188 of IPC itself. The impugned FIR is silent about the same and in view of the above, the law can be summarised to the effect that there must be a complaint by the public servant whose lawful order has not been complied with. The complaint must be in writing. The provisions of Section 195 CrPC are mandatory. Non-compliance with it would vitiate the prosecution and all other consequential orders. The court cannot assume the cognizance of the case without such complaint…”.

In the pertinent matter it was alleged that as per the FIR registered, Soren exhibited party sign by wearing a “patta” while casting his vote for the 2019 Lok Sabha election. It was alleged that the same act was against the model code of conduct, and thereby Soren was accused of having committed an offence under Section 130(e) of the Representation of People Act, 1951.

Subsequent to which the Executive Magistrate, on duty, took cognizance for the alleged violation under Section 188 of IPC and under Section 130(e) of the Representation of People Act, 1951, and the matter is thus pending before Judicial Magistrate, Ist Class, Ranchi.

Therefore, the pertinent question for the Court to decide on was, whether the Executive Magistrate has the locus standi to file FIR, directly to the concerned police station for registration of crime under Section 188 of the IPC and under section 130(e) of the Representation of People Act, 1951 against the petitioner (Hemant Soren)?

The petition contended that in absence of judicial mind, cognizance has been taken against the petitioner however, there is no whisper of any allegation that the petitioner in any manner disobeyed the order promulgated by any public servant lawfully empowered to promulgate and did anything which the petitioner was abstained from doing so. He further submits that section 195 (1)(a) of the Cr.P.C. speaks that only on the complaint such case can be entertained.

The Court was thus of the opinion, “On conjoint reading of the provision of Section 188 of IPC and Section 195 of Cr.P.C., it is evident that if the alleged offence is punishable under Sections 172 to 188 of IPC, the court cannot take cognizance except on a complaint in writing of the public servant concerned, or some other public servant, to whom he is administratively subordinate. In such peculiar circumstances, no FIR could have been registered by the Executive Magistrate for an offence punishable under Section 188 of IPC. The legislative intention appears to be clear from the language of section 195(1) of Cr.P.C. itself, which categorically prescribes that where an offence is committed under Section 188 of IPC, it would be obligatory for the public servant before whom such offence is committed, to file a complaint before the concerned Magistrate having jurisdiction to take cognizance of it”.

Earlier this month, the Supreme Court had junked a PIL leveling allegations against Soren of money laundering through several shell companies owned by him, which the High Court previously held to be maintainable.

Case Title: Hemant Soren vs State of Jharkhand and others