Jharkhand High Court quashes criminal proceedings against CM Hemant Soren in Model Code of Conduct case

The Jharkhand High Court last week quashed criminal proceedings against Chief Minister Hemant Soren accused of violating Model Code of Conduct (MCC) during the 2019 Lok Sabha elections [Hemant Soren v State]..Soren had moved the High Court challenging the case against him under Section 188 (disobedience to order duly promulgated by public servant) of the Indian Penal Code (IPC) and Section 130(e) of the Representation of People Act, 1951 which was pending before a Ranchi Court.While quashing the plea, single-judge Justice Sanjay Kumar Dwivedi noted that as per Section 195(1)(a)(i) of the Code of Criminal Procedure (CrPC), a court can take cognizance of any offence punishable under IPC only on the complaint in writing of the public servant concerned.“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 Cr.P.C. itself, which categorically prescribes that where an offence is committed under Section 188 of IPC, it would be obligatory for the public servant before whom such offence is committed, to file a complaint before the concerned Magistrate having jurisdiction to take cognizance of it,” the Court held..In the first information report (FIR) filed by Executive Magistrate, it was claimed that on May 6, 2019, Soren had gone to a polling booth to cast his vote and had allegedly exhibited his party sign by wearing a 'patta' (scarf).The same was against Model Code of Conduct and, thereby, the CM committed offence under section 130(e) of the Representation of People Act, 1951, the FIR stated.In light of above, the Magistrate took cognizance of the offence. Aggrieved by same, Soren moved the High Court against the FIR.Soren's counsel argued that, there was no whisper of any allegation that in any manner he disobeyed any order promulgated by any public servant.The Counsel further argued that Magistrate couldn't have taken cognizance of the case, as there was no complaint made to a magistrate for the offence under Section 188 IPC as per the mandate of Section 195(1)(a)(i) of the CrPC. .Considering the facts, the Court noted that, in the present case, the FIR lodged by the Executive Magistrate cannot be termed as a complaint (as defined under CrPC) given to the Magistrate in writing so as to give the power to the magistrate concerned to take cognizance of the offence."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 the cognizance of the case without such complaint. In the absence of such a complaint, the trial and conviction will be void ab initio being without jurisdiction," the Court ruled. The petitioner was represented by advocates Kaushik Sarkhel and Abhishek Singh while State was represented by Advocate Vandana Bharti. .On November 8, the Supreme Court had ruled in another case that public interest litigation petitions filed against Soren before the Jharkhand High Court alleging money laundering and irregularities in granting mining leases, were not maintainable..[Read Order]