Sarthak Umang
Published on: 14 November 2022 at 21:42 IST
The allegation against CM Hemant Soren in May 2019 was that when he had gone to a polling booth to cast his vote, he had allegedly exhibited his party sign by wearing a “patta” (scarf), violating the Model Code of Conduct (MCC) during the 2019 Lok Sabha elections.
The Jharkhand High Court quashed criminal proceedings against Chief Minister Hemant Soren under Section 188 of the IPC and Section 130(e) of the Representation of People Act, 1951.
Bench Justice Sanjay Kumar Dwivedi observed that, as per Section 195(1)(a)(i) of the Code of Criminal Procedure (CrPC), it is only upon the written complaint of a public servant that a court can take cognizance of an offence punishable under the IPC.
“In such peculiar circumstances, no FIR could have been registered by the Executive Magistrate for an offence punishable under Section 188 of IPC. The legislative intention appears to be clear from the language of Section 195(1) of the CrPC itself,”
“…which categorically prescribes that where an offence is committed under Section 188 of the IPC, it would be obligatory for the public servant before whom such an offence is committed to file a complaint before the concerned magistrate having jurisdiction to take cognizance of it.”
As defined under CrPC, the FIR lodged by the Executive Magistrate cannot be considered a complaint in writing addressed to the Magistrate for the magistrate to take cognizance of the offense.
“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 cognizance of the case without such a complaint. In the absence of such a complaint, the trial and conviction will be void ab initio, being without jurisdiction,”