Model Code Of Conduct Violation Case | Jharkhand High Court Quashes Case Against CM Hemant Soren

The Jharkhand High Court on Friday quashed criminal proceedings instituted against Chief Minister Hemant Soren for allegedly violating the model code of conduct during the 2019 Assembly elections in the state. 

The instant case pertains to the polling day in Ranchi on May 06, 2019, when CM Soren had gone to a polling booth to cast his vote along with his wife wherein he had allegedly adorned scarves/Patta with JMM and party symbol written on the same.

Pursuant to this, the Executive Magistrate concerned had directed the concerned police station to file the FIR under Section 188 of the IPC and under section 130(e) of the Representation of People Act, 1951 and further, the Magistrate also took cogniznace of the offence on the FIR.

Challenging this FIR, CM Soren moved to the High Court arguing that he had not disobeyed the order promulgated by any public servant lawfully empowered to promulgate and did anything which the petitioner had been abstained from doing so.

It was also his argument that Magistrate couldn't have taken cognizance of the case, as there was no complaint made to a magistrate for the offence under section 188 IPC as per the mandate of Section 195(1)(a)(i) of the Code of Criminal Procedure

At the outset, the bench of Justice Sanjay Kumar Dwivedi noted that as per Section 195(1)(a)(i) of the Code of Criminal Procedure, a court can take cognizance of any offence punishable under Sections 172 to 188(both inclusive) of the IPC only on the complaint in writing of the public servant concerned.

The Court further noted that no FIR could have been registered by the Executive Magistrate for an offence punishable under Section 188 of IPC as the legislative intent of section 195(1) of Cr.P.C. 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.

Therefore, the Court held that in the instant case, the FIR lodged by the Executive Magistrate cannot be termed as a "complaint" given to the Magistrate in writing so as to give the power to the magistrate concerned to take cognizance of the offence.

"...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 absence of such a complaint, the trial and conviction will be void ab initio being without jurisdiction," the Court added.

Consequently, the Court held that order taking cognizance by the Masgistrate was not in accordance with law which is barred under section 195 CrPC and hence, the Case and connected proceedings were quashed.

Citation: 2022 LiveLaw (Jha) 90