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Judgment
The applicant has filed this petition under Section 482 of the Code of Criminal Procedure for quashing of FIR registered as Crime No.409/2018 at Police Station, Kotwali, Distt. Sagar for the offence punishable under Section 188 of IPC and under Section 3 of M.P. Sampatti Virupan Nivaran Adhiniyam, 1994 and prays to quash Criminal Case No.3223/2018 registered in the Court of Chief Judicial Magistrate, Sagar arising out of the Crime No.409/2018.
The case of prosecution against the applicant, in short, is that the applicant is running business in the name of Aadinath Motor Sansthan. On 28/10/2018 the election of the Assembly was under progress and preventing order of code of conduct was in force. It is alleged that the present applicant before his shop by encroaching the public road installed tent for selling goods in that tent and also tagged flag having symbol of lotus of political party, hence that act of the applicant falls in violation of the preventing order. Ravishankar Sonkar who had been assigned the powers of Executive Magistrate saw that and found encroachment and banner of the political party submitted a written report at Police Station, Kotwali, Distt. Sagar for lodging FIR, seized tent and other material found on the road. Police registered Crime No.409/2018 at Police Station City Kotwali, Distt. Sagar for the offence punishable under Section 188 of IPC as also under Section 3 of M.P. Sampatti Virupan Nivaran Adhiniyam, 1994 and after investigation, charge sheet has been filed before the Court of Chief Judicial Magistrate, Sagar where case registered as Criminal Case No.3223/2018.
The applicant has agitated the fact of taking cognizance on the ground that the Police cannot file charge sheet for the offence punishable under Section 188 of IPC because there is a bar under Section 195(1)(a) of the Code of Criminal Procedure, 1973 and on other ground that the tent house was not installed by the applicant as it was installed by another person Laxman Prajapati for selling utensils and other items on the occasion of Karwa Choudh and Diwali, therefore, the applicant is not any way concerned of the same. He has falsely been implicated in the matter. The trial Court has committed an error in taking cognizance against the applicant, therefore, prays to quash the FIR as well as criminal proceeding.
Having heard learned counsel for the parties and perused the case diary. It is prima facie reflected that the tent was installed just before the shop of the applicant. Whether the tent was hired by Laxman Prajapati or applicant is not to be seen at this stage while taking cognizance and it is also reflected that during enforcement of provisions of code of conduct, banner of particular political party has been installed on that tent which is a clear violation of preventing order.
So far as Section 195(1)(a) of the Code of Criminal Procedure is concerned, the Court cannot take cognizance on the basis of charge sheet, but, if other cognizable offence is included with the offence punishable under Section 188 of the IPC and the case registered on the basis of written complaint filed by the aggrieved party, then the Court can take cognizance along with other cognizable offences. In these premises, Court, at this stage of taking cognizance under Section 3 of M.P. Sampatti Virupan Nivaran Adhiniyam, 1994, cannot deal with the matter on merit. If there is any ground found against the applicant, learned trial Court can take cognizance. Whether tent belongs to the applicant or not, it has to be seen during framing of charge or during trial. In these premises, this Court is not inclined to quash the criminal proceeding against the applicant.
In view of aforesaid, this petition is devoid of merit and the same is hereby dismissed. There shall be no order as to cost.
If any interlocutory application is pending, the same stands dismissed.