M. Veerappa Moily vs The Sub Inspector of Police and The District Election Officer

A. Hariprasad, J.—Petitioner is the accused in Crime No. 167 of 2006 of Kasaba Police Station, Kozhikode registered u/s 126 of the Representation of the People Act, 1951 (in short, "the Act"). The matter is pending before the court of Chief Judicial Magistrate, Kozhikode as C.C. No. 115 of 2007. Allegation against the petitioner, in brief, is that while the petitioner was functioning as AICC Working Committee member, he held a press conference at Hotel Malabar Palace, Kozhikode on 28.04.2006 at about 11 a.m. in violation of the provisions contained in Section 126 of the Act. Section 126 of the Act reads as follows:

Prohibition of public meetings during period of forty-eight hours ending with hour fixed for conclusion of poll.--

(1) No person shall-

(a) convene, hold, attend, join or address any public meeting or procession in connection with an election; or

(b) display to the public any election matter by means of cinematograph, television or other similar apparatus; or

(c) propagate any election matter to the public by holding, or by arranging the holding of, any musical concert or any theatrical performance or any other entertainment or amusement with a view to attracting the members of the public thereto, in any polling area during the period of forty-eight hours ending with the hour fixed for the conclusion of the poll for any election in that polling area.

(2) Any person who contravenes the provisions of sub-section (1) shall be punishable with imprisonment for a term which may extend to two years, or with fine, or with both.

(3) In this section, the expression "election matter" means any matter intended or calculated to influence or affect the result of election.

Heard the learned counsel for the petitioner and the learned Public Prosecutor.

Learned counsel for the petitioner submitted that the prosecution is legally unsustainable for multiple reasons. According to him, the offence alleged to have been committed by the petitioner is not a cognizable offence. Sub-section (2) of Section 126 of the Act would show that the punishment prescribed is upto two years imprisonment and therefore, it can only be regarded as a summons case defined in Section 2(w) of the Code of Criminal Procedure, 1973 (in short, "the Cr.P.C."). My attention was drawn to Sections 129, 130, 132 and 134 of the Act. Section 132 of the Act deals with penalty for misconduct at the polling station. The offence prescribed u/s 132 of the Act is made cognizable by the statute itself. To buttress the contention that the prosecution is bad, learned counsel for the petitioner relied on the decision of the Supreme Court in Jeewan Kumar Raut and Another Vs. Central Bureau of Investigation, That was a case involving an offence punishable u/s 22 of the Transplantation of Human Organs Act, 1994. Considering the statutory provisions, the Supreme Court held that the offence therein could be taken cognizance only on a complaint made by the appropriate authority or person and not by registering a FIR. This Court while considering the provisions of Protection of River Banks and Regulation of Removal of Sand Act, 2001 held in Abdul Azeez Vs. State of Kerala, that the offences under the Sand Act cannot be suo motu taken by the Police under the provisions of the Cr.P.C. Considering these submissions, I am satisfied that the launching of prosecution is not legally sustainable.

On facts also, submitted the learned counsel for the petitioner, the statements produced along with the final report will not show that there was a press conference held by the petitioner as alleged by the prosecution. It is contended on behalf of the petitioner that he occupied a room in the hotel and some press people might have contacted him at his room. It is further contended that this cannot be termed as a press conference attracting the offence u/s 126 of the Act. I am satisfied that the petitioner has made out a case that the alleged offence is not attracted in this case. Therefore I find that the petition is to be allowed to meet the ends of justice.

In the result, the petition is allowed. Final report in C.C. No. 115 of 2007 on the file of Chief Judicial Magistrate Court, Kozhikode is hereby quashed.

All pending interlocutory applications will stand dismissed.