FAISAL RAHMAN Vs. STATE OF BIHAR

JUDGEMENT

(1.) Heard learned counsel for the petitioners and learned counsel for the State.

(2.) This application under Articles 226 and 227 of the Constitution of India has been filed by the petitioners for quashing the First Information Report (for short 'FIR') of Dhaka P.S. Case No.147 of 2019 dated 12.05.2019 registered under Sections 130 and 133 of the Representation of the People Act, 1951 (for short 'RP Act' and Section 188 of the Indian Penal Code (for short 'IPC').

(3.) Mr. S.B.K. Mangalam, learned counsel appearing for the petitioners submitted that the allegations made in the FIR do not constitute any cognizable offence. In the absence of any cognizable offence having been committed, the police had no authority to institute an FIR. He submitted that the ingredients of the offence punishable under Section 130 of the RP Act are not attracted. There is no allegation that vehicle in question was being used for displaying any poster or banner within the distance of hundred meters of the polling station. He has submitted that similarly the offence punishable under Section 188 of the IPC is also not attracted. As per Section 195(1) of the Code of Criminal Procedure (for short 'CrPC') the Court cannot take cognizance under Section 188 of the IPC unless there is a complaint in writing of a public servant or other public servant to whom he is administratively subordinate whose order has been disobeyed. Lastly, he contended that in any view of the matter, a prosecution under Section 188 of the IPC can not be launched against any person by way of instituting an FIR. He has submitted that petitioner no.1 is the owner of the vehicle bearing Registration No. BR-01BG-0007 and petitioner no.2 is its driver. In support of his submission, he has placed reliance on the decisions of this Court in the matter of Parveen Amanullah vs. The State of Bihar [2017 (3) PLJR 101] and Dharmesh Prasad Verma vs. The State of Bihar [2017 (1) PLJR 401].