APHC010436552019 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3333] MONDAY ,THE TWENTY FOURTH DAY OF FEBRUARY TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SMT JUSTICE V.SUJATHA CRIMINAL PETITION NO: 7936/2019 Between: Azeemuniasa Sk and Others ...PETITIONER/ACCUSED(S) AND The State Of Andhra Pradesh and Others ...RESPONDENT/COMPLAINANT(S) Counsel for the Petitioner/accused(S): 1. THANDAVA YOGESH Counsel for the Respondent/complainant(S): 1. MD SALEEM 2. PUBLIC PROSECUTOR (AP) The Court made the following: 2 VS,J Crlp_7936_2019 ORDER: This criminal petition is filed under Section 482 of Criminal Procedure Code (for short “Cr.P.C.”) to quash the proceedings in F.I.R.No.78 of 2018, dated 14.05.2018on the file ofGudivada II Town Police Station, Krishna District. 2. The petitioners herein are accused Nos.1 and 2. The 2nd respondent is the defacto complainant. On 12.03.2018, the defacto complainant submitted a complaint to the Superintendent of Police, Krishna District stating that the 1st petitioner herein is a disqualified person as she gave birth to four children by 2014. Every candidate should submit a positive declaration that he or she is not disqualified for contesting as ward councillor, but, the 1st petitioner herein intentionally gave a false declaration to the Election Officer while filing nomination papers and hence, it is a criminal act as per Section 181 and 171-G of IPC. The main goal of the petitioners herein is to facilitate the 1st petitioner to enjoy the privileges of a ward councillor by illegal means. It is further stated that the 1st petitioner is not at all entitled to occupy the seat of councillor in Gudivada Municipality even for a single day, as such, every single rupee spent by the Government on the 1st petitioner is a wrongful loss to the Government.Stating thus, the 2nd respondent has requested the Police to take action against the petitioners herein. Upon receiving the said complaint, the Police have registered a case in FIR.No.78 of 2018 on the file of Gudivada II Town Police Station, Krishna District against the petitioners herein for the offences punishable under Sections 420, 171-G read with Section 34 IPC. With a plea to quash the said proceedings, the petitioners have filed the present petition. 3. During the course of arguments, learned counsel for the petitioners vehemently argued that the complaint itself is barred by law. As per Section 17(3) of Andhra Pradesh Municipalities Act, 1965, any disqualification of ward councillor pertaining to municipal elections must be decided by way of 3 VS,J Crlp_7936_2019 election OP in a district Court by any voter or the municipality or otherwise.Filing a criminal case on the allegation of false declaration by an elected candidate is nothing but abuse of process of court. Hence, requested to quash the criminal proceedings against the petitioners. 4. Learned Assistant Public Prosecutor contended that the allegations levelled against the petitioner would constitute offence punishable under Sections 420, 171-G read with Section 34 IPC,therefore, the proceedings against the petitioner cannot be quashed. Hence, prayed to dismiss the petition. 5. When the criminal petition came up for hearing on 07.01.2020, this Court has passed the following interim order: “….In the meanwhile, there shall be interim stay of all further proceedings including arrest of the petitioners/A1 and A2 in FIR No.78 of 2018, dated 14.05.2018 of Gudivada II Town Police station, Krishna District.” 6. Having heard the submissions made by the learned counsel representing both parties and on perusal of the material available on record, the point that arises for consideration is as follows: “Whether the proceedings against the petitioners in FIR.No.78 of 2018 on the file of Gudivada II Town Police Station, Krishna District, are liable to be quashed by exercising jurisdiction under Section 482 of Cr.P.C.?” 7. Section 482 of Cr.P.C saves the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under the Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. It is an obvious proposition that when a Court has authority to make an order, it must have also power to carry that order into effect. If an order can lawfully be made, it must be carried out; otherwise it would be useless to make it. The authority of the Court exists for the advancement of justice, and if any attempt is made to abuse that authority so as to produce injustice, the Court must have power to prevent that abuse. In 4 VS,J Crlp_7936_2019 the absence of such power the administration of law would fail to serve the purpose for which alone the Court exists, namely to promote justice and to prevent injustice. Section 482 of Cr.P.C confers no new powers but merely safeguards existing powers possessed by the High Court. Such power has to be exercised sparingly in exceptional cases and this power is external in nature to meet the ends of justice. 8. Time and again, the scope of powers of this Court under Section 482 of Cr.P.C. were highlighted by the Apex Court in long line of perspective pronouncements, which are as follows: In “R.P. Kapur v. State of Punjab1”, the Apex Court laid down the following principles: (i) Where institution/continuance of criminal proceedings against an accused may amount to the abuse of the process of the court or that the quashing of the impugned proceedings would secure the ends of justice; (ii) where it manifestly appears that there is a legal bar against the institution or continuance of the said proceeding, e.g. want of sanction; (iii) where the allegations in the First Information Report or the complaint taken at their face value and accepted in their entirety, do not constitute the offence alleged; and (iv) where the allegations constitute an offence alleged but there is either no legal evidence adduced or evidence adduced clearly or manifestly fails to prove the charge. 9. Section 482 of the Code of Criminal Procedure empowers the High Court to exercise its inherent power to prevent abuse of the process of Court. In proceedings instituted on complaint exercise of the inherent power to quash the proceedings is called for only in cases where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance is taken by the Magistrate it is open to the High Court to quash the 1AIR 1960 SC 866 5 VS,J Crlp_7936_2019 same in exercise of the inherent powers under Section 482. It is not, however, necessary that there should be a meticulous analysis of the case, before the trial to find out whether the case would end in conviction or not. The complaint has to be read as a whole. If it appears on a consideration of the allegations, in the light of the statement on oath of the complainant that ingredients of the offence/offences are disclosed, and there is no material to show that the complaint is mala fide, frivolous or vexatious. In that event there would be no justification for interference by the High Court as held by the Apex Court in “Mrs.Dhanalakshmi v. R.Prasanna Kumar2” 10. In “State of Haryana v. BhajanLal3” the Apex Court considered in detail the powers of High Court under Section 482 and the power of the High Court to quash criminal proceedings or FIR. The Apex Court summarized the legal position by laying down the following guidelines to be followed by High Courts in exercise of their inherent powers to quash a criminal complaint: (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non- cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. 2 AIR 1990 SC 494 3 1992 Supp (1) SCC 335 6 VS,J Crlp_7936_2019 (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. 11. Keeping in view the above principles, I would like to examine the case on hand. 12. The brief contents of the complaint are that the 1st petitioner herein is a 10th ward councillor of Gudivada Municipality and has been enjoying the privileges, though she has given a false declaration that she is not having four children. The further case of the prosecution is that every single rupee spent by the Government on the 1st petitioner is wrongful loss to the Government. But, as per Article 243ZG(b) of Constitution of India, invoking criminal law for an electoral matter is unconstitutional.Article 243ZG(b) of Constitution of Indiais extracted hereunder for better appreciation of the case: “(b) No election to any Municipality shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any law made by the Legislature of a State.” 13. As per Article 243(2) of Constitution of India, if any question arises as to whether a member of a Municipality is disqualified, the question has to be referred for the decision of such authority and in such manner as the legislature of a State may, by law, provide.When such a question arises, the only course of action is to file an election petition before the competent court. No other alternatives are available.An election to any Municipality cannot be questioned or challenged except through an election petition. This petition 7 VS,J Crlp_7936_2019 must be presented to the appropriate authority, and the process must follow the procedures established by law. Specifically, the manner and conditions for filing such a petition are outlined in the laws enacted by the Legislature of the respective State. In other words, any disputes regarding the outcome of a municipal election must be raised in accordance with the legal framework provided by the state’s legislation, ensuring that challenges are made in a structured and lawful manner.Section 17 of the Andhra Pradesh Municipalities Act, 1965 deals with the authority of a District Judge to decide questions of disqualifications of members. For better understanding, Section 17 of the Act, 1965 is extracted hereunder: “17. District Judge to decide questions of disqualifications of members. (1)Where an allegation is made by any voter or authority to the Commissioner in writing that any person who is elected a a member has not qualified or has become disqualified under Section 13, Section 13-A and Section 13- B Section 14, Section 15, Section 16 or Section 19 and the Commissioner has given intimation of such allegation to the member and such member disputes the correctness of the allegation so made or where any member himself entertains any doubt whether or not he has become disqualified under any of those sections. (a)such member or any other member may, within a period of two months from the date on which such intimation is given or doubt is entertained, as the case may be, and (b)the Commissioner shall, either on the direction of the council or with the approval of the Government if no such direction is given within a period of two months from the date of placing of the matter by the Commissioner before the council, apply for a decision to the District Judge of the district in which the municipality is situated. (2)The said Judge, after making such inquiry as he deems necessary, shall determine whether or not such person is disqualified and his decision shall be final. (3)Pending such decision, the member shall be entitled to act as if he was not disqualified.” 8 VS,J Crlp_7936_2019 14. In Jaspal Singh Arora VS. State of M.P4, the Hon’ble Supreme Court of India held that the election could not be called in question except by an election petition as provided under the Act and further held as under: “…The bar to interference by courts in electoral matters contained in Article 243- ZG of the Constitution was apparently overlooked by the High Court in allowing the writ petition. Apart from the bar under Article 243-ZG, on settled principles interference under Article 226 of the Constitution for the purpose of setting aside election to a municipality was not called for because of the statutory provision for election petition.” 15. In Gurudeep Singh Dhillon V. Satpal5, the Apex Court after quoting Article 243-ZG(b) held that the shortcut of filing the writ petition and invoking constitutional jurisdiction of the High Court under Articles 226/227 was not permissible and the only remedy available to challenge the election was by raising the election dispute under the local statute. 16. Even in the case on hand, the defacto complainant, though there is a remedy available to challenge the election by raising an election dispute, has filed the present complaint invoking criminal jurisdiction, which is not called for in view of the aforementioned judgments of the Apex Court. While the rule of exhausting alternative remedies is discretionary, it is generally inappropriate for the High Court to entertain a petition when the person has effective alternatives, such as filing an appeal or application. As such, continuation of criminal proceedings against the petitioners would lead to abuse of process of court. As per the principle No.1 of the principles laid down in R.P. Kapur v. State of Punjab(1st Supra) if continuance of criminal proceedings against an accused may amount to the abuse of the process of the court or that the quashing of the impugned proceedings would secure the ends of justice, the Court can exercise power under Section 482 of Cr.P.C. and quash the proceedings. Applying the said principle to the present facts of 4 (1998) 9 SCC 594 5 (2006) 10 SCC 616 9 VS,J Crlp_7936_2019 the case and keeping in view the above discussion, I find that it is a fit case to quash the proceedings. 17. Accordingly, this criminal petition is allowed and the proceedings in F.I.R.No.78 of 2018, dated 14.05.2018 on the file of Gudivada II Town Police Station, Krishna Districtare hereby quashed. The miscellaneous petitions pending, if any, shall also stand closed. __________________ JUSTICE V.SUJATHA 24.02.2025 Gss