Violation of election code of conduct: Bombay HC quashes 2010 FIR against Raj Thackeray

As per the FIR, he went to Kalyan and Dombivali area for campaigning that was to be completed by September 29–2010, as per the April 9 circular of State Election Commission (SEC). Citing the circular, the deputy commissioner of police had issued notice to Thackeray asking him not to stay within KDMC area beyond 10 pm on September 29.

As per the notice, he was also asked not to visit any political party office, residence, hotel, lodges and guest houses, and in case of violation, he may face prosecution under Section 126 of the Representation of Peoples Act. The prosecution alleged that Thackeray stayed in a house within KDMC area beyond the notified time, and when a senior police inspector visited him to serve him a notice, he refused to accept it, after which it was posted at the location concerned.

An FIR was registered against Thackeray under Section 188 (disobedience to order by a public servant) of the IPC for violating the notice. After the probe was complete, the chargesheet was filed before the judicial magistrate in Kalyan in 2011. The magistrate took its cognisance and issued a summons to Thackeray on January 10–2011, to appear before it on February 5 that year. Thackeray appeared before the court and sought bail which was granted the same day.

Thackeray filed a plea in HC through advocate Sayaji Nangre, seeking to quash the case. On April 27–2015, the HC granted a stay on proceedings pending his plea, and gave directives to expedite the hearing. Nangre argued that Section 188 of IPC was a cognisable offence and, therefore, proceedings could not be initiated through FIR but through a complaint before the magistrate and thus, the FIR was not as per law.

The HC held that the notice issued to Thackeray under section 149 (police to prevent cognizable offences) of Criminal Procedure Code (CrPC) does not constitute an order duly promulgated and as such ‘no offence under section 188 of IPC is made out.”

“Admittedly, as cognisance was taken of the offence without any written complaint being filed, the prosecution stands vitiated being barred under CrPC,” the bench noted. It added that there was an express legal bar on the institution and continuation of proceedings, and allowed Thackeray’s application and quashed the FIR registered with Dombivali police station and quashed proceedings before the magistrate court.