Allahabad HC Quashes Criminal Proceedings Against Abdullah Azam Khan Alleging Promoting Enmity Between Classes During Elections [Read Order]

Khan was being investigated under Sections 171-G IPC and 125 Representation of People Act.

Section 171-G of IPC states that whoever with intent to affect the result of an election makes or publish­es any statement purporting to be a statement of fact which is false and which he either knows or believes to be false or does not believe to be true, in relation to the personal character or conduct of any candidate shall be punished with fine.

Section 125 of the RPA states that any person who in connection with an election promotes or attempts to promote on grounds of religion, race, caste, community or language, feelings of enmity or hatred, between different classes of the citizens of India shall be punishable with imprisonment for a term which may extend to three years, or with fine, or with both.

Notably, offences under both the provisions are non-cognizable offences. When a charge sheet is submitted for commission of non-cognizable offences, it is deemed to be a complaint under explanation to Section 2(d) of CrPC that should be dealt with under Chapter XV of CrPC.

In the instant case however the Magistrate concerned had passed a cognizance order on July 30, 2019.

Holding that order to be unsustainable in law, Justice Om Prakash VII set aside the cognizance order and quashed the entire proceedings. It held,

"A perusal of record shows that the Magistrate concerned without considering the nature of offence for which charge-sheet was submitted, took cognizance on 30.7.2019. Since offence under Sections 171-G IPC and 125 Representation of People Act are non-cognizable offence, cognizance could not be taken on the charge-sheet for the aforesaid offences, as provisions of Section 2 (d) CrPC and Chapter XV of the CrPC will be attracted in the matter. In the circumstances, the Court is of the opinion that cognizance taken vide order dated 30.7.2019 on the charge-sheet submitted for the offence under Sections 171-G IPC and 125 Representation of People Act is liable to be set-aside."

Last year, the Allahabad High Court had disqualified Khan from membership of the State Legislative Assembly for being less than 25 years of age as on the date of election. In January this year, the Supreme Court agreed to examine the matter however it refused to stay that order.

Case Details:

Case Title: Abdullah Azam Khan v. State of UP & Anr.

Case No.: Application U/S 482 No.: 6956/2020

Quorum: Justice Om Prakash VII

Appearance: Advocates Saiful Islam Siddiqui and Tahira Kazmi (for Petitioner)

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