Holding Public Political Meeting After Enforcement Of MCC & S. 144 CrPC Order Amounts To Formation Of Unlawful Assembly: Jharkhand HC

The Jharkhand High Court has observed that holding a public political meeting by a candidate of election, after coming into force of Model Code of Conduct followed by the issuance of prohibitory order under Section 144 Cr.P.C. of the aforesaid nature, would prima facie amount to formation of unlawful assembly.

The Bench of Justice Anubha Rawat Choudhary further clarified that the common object of such an assembly, prima facie, would be to act in violation of the prohibitory order issued under Section 144 Cr.P.C.

The Court observed thus as it upheld charge under Section 143 of IPC [Punishment for being a member of unlawful assembly] against Former IPS Officer Amitabh Choudhary, who contested the 2014 General Elections from Ranchi Parliamentary Constituency as a Jharkhand Vikas Morcha leader.

The case in brief

Essentially, the petitioner (Former IPS Officer Amitabh Choudhary) was booked under Section 126(1)(a) of the Representation of People Act, 1951 and Sections 143 and 188 of the Indian Penal Code for allegedly convening a political meeting without obtaining any prior permission and in violation of the Model Code of Conduct.

It was further alleged that it was also found that in course of the political meeting, petitioner gave a political speech which constitutes an offence for violation of the Model Code of Conduct.

Therefore, he preferred Section 482 CrPC application for quashing the entire proceedings in connection with the FIR including the order passed by the Judicial Magistrate, Ranchi taking cognizance against the petitioner for the aforementioned offences.

Court's observations 

At the outset, the Court observed that the allegation against the petitioner is that being a candidate in the election, he had organising political meeting in open space in the school premises without prior permission and had thus, violated the Model Code of Conduct and violated the prohibitory order issued under by the administration under section 144 Cr.P.C.

Regarding the offence under Section 188 IPC, the Court noted that in the instant case, an F.I.R. had been lodged by the Block Animal Husbandry Officer and the cognizance of the offence under Section 188 of IPC had been taken on the basis of the F.I.R. and the charge-sheet, and therefore, the Court opined, the same was not in consonance with the provisions of Section 195(1)(a) of Cr.P.C.

Here it may be noted that Section 195(1)(a) of Cr.P.C. prohibits a court from taking cognizance of the offence punishable, interalia, under Section 188 of IPC, except on a complaint in writing of the public servant concerned or other public servant to whom he is administratively subordinate.

In view of this, the Court remarked thus:

"This Court is of the considered view that there was no bar in institution of F.I.R in the present case, but so far as cognizance of offence under Section 188 Indian Penal Code is concerned, the same having not been taken on a complaint, the order taking cognizance under Section 188 Indian Penal Code cannot be sustained in the eyes of law."

Further, regarding the offence under Section 143 of the Indian Penal Code, the Court held that the charge was made out against the petitioner in the light of the allegations and materials collected during investigation, accordingly, the order taking cognizance for offence under Section 143 IPC was upheld.

Lastly, regarding the charge under Section 126 of the Representation of People Act [Prohibition of public meetings during period of fortyeight hours ending with hour fixed for conclusion of poll], the Court observed thus:

"As the date of incident was much beyond 48 hours from the date of the election, this Court is of the considered view that the condition precedent for constituting an offence under Section 126(1)(a) of the Representation of People Act, 1951 is not satisfied and accordingly, the basic ingredients of the offence under Section 126(1)(a) of the Representation of People Act, 1951 are not satisfied against the petitioner."

Accordingly, the impugned order taking passed by the Judicial Magistrate, Ranchi was set aside to the extent it relates to offence under Section 126 of the Representation of People Act, 1951 and offence under Section 188 IPC.

Since cognizance under section 188 IPC has been set-aside on technical grounds, the concerned authorities may proceed in accordance with law as already indicated above. As a result, the present criminal miscellaneous petition is partly allowed.

Case title - Amitabh Choudhary v. The State of Jharkhand and another

Case Citation: 2022 LiveLaw (Jha) 31

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