J&K court closes case against PDP MLA Waheed-ur-Rehman Parra for flouting MCC

A court here in Kashmir's Awantipora on Friday dismissed the criminal case filed against PDP leader and Member Legislative assembly Waheed-ur-Rehman Parra for allegedly violating the Model Code of Conduct MCC) during the 2024 Jammu and Kashmir Assembly elections [UT of J&K Through SHO P/S Awantipora V/s Waheed ur Rehman Parra].

Parra was booked by Awantipora police for allegedly organizing a roadshow on April 27, 2024 in Pulwama without prior permission. The police filed a charge-sheet under Section 188 of the IPC which penalizes disobedience to an order duly promulgated by a public servant.

Additional Special Mobile Magistrate Muneer Ahmad Bhat observed that the Court could not take cognizance of the case in absence of a written complaint by a competent public servant, as required under Section 195(1)(a) of the Criminal Procedure Code (CrPC).

Further, the Court said that the MCC cannot be classified as an 'order' promulgated by a public servant under Section 188 of the Indian Penal Code (IPC).

"By no means can the Model Code of Conduct be classified as an order under section 188 of the IPC. The Model Code of Conduct serves solely as guidance for political parties and candidates. It was established through the consensus of political parties in India with the aim of strengthening the foundations of the political system in our country. Clearly, it lacks statutory backing, and many of its provisions are not legally enforceable," the order said.

Even if MCC is considered an order under section 188 of the IPC, the document Model Code of Conduct itself does not specify which public servant issued this order, the Court further said.

"This clarification is crucial, as cognizance of an offence under Section 188 of IPC can only be taken upon a complaint from the public servant whose order was violated, or from their superior. Undoubtedly, the Model Code of Conduct is issued by the Election Commission of India, a constitutional body; thus, ideally, any prosecution should be based on a complaint from the Election Commission itself. Consequently, the requirements of Section 195 of the Cr.P.C. are not met in this case, rendering the prosecution merely a formality," the order stated.

After Parra was booked, police filed a chargesheet for offence under Section 188 of the IPC and the matter came up for cognizance before judge Bhat.

The counsel for Parra stated that cognizance of the alleged offence was barred as there was no written complaint annexed with the challan as mandated by section 195 (1) (a) of CrPC.

The additional public prosecutor, appearing for the prosecution, stated that on the basis of evidence collected/recorded by the investigating agency during the course of investigation, prima facie the offence under Section 188 of IPC was established. Cognizance is not barred prima facie as there is sufficient evidence to proceed further, it was argued.

After hearing both parties, the Court noted that in the present case, the prosecution failed to identify the specific public servant whose lawful order was allegedly disobeyed. Moreover, no written complaint was filed by the Election Commission or its designated officer thereby, violating the mandatory procedural requirement.

The Court clarified that the definition of 'complaint' under Section 2(d) of CrPC explicitly excludes a police report. Therefore, a chargesheet filed by the police without such a complaint does not satisfy the requirement under Section 195, rendering the prosecution invalid.

Further, MCC is not a statutory order enforceable under criminal law. It is a consensual code agreed upon by political parties and enforced by the Election Commission of India as a moral guideline. It lacks statutory force unless backed by a law or a specific order issued by a competent public servant, the Court said.

Accordingly, it quashed the chargesheet and discharged Parra from all proceedings.

The Court also directed that any seized documents or articles be returned to their rightful owner upon submission of a personal bond.

Additional Public Prosecutor Ruksana appeared for the Union Territory of Jammu and Kashmir.

Advocate Zahid & Assts. appeared for Parra.

[Read Order]