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2026 DAILYLAW 21376 (JHR)

Mahua Maji v. State of Jharkhand

2026-02-24

Anil Kumar Choudhary

body2026
JUDGMENT : ANIL KUMAR CHOUDHARY, J. I.A. No. 2788 of 2026 Heard the parties. Learned counsel for the petitioners submits that this interlocutory application has been filed for early hearing of this Criminal Miscellaneous Petition. Since, the hearing of this Criminal Miscellaneous Petition is taken up today, hence, this interlocutory application stands disposed of being infructuous. 2. This criminal miscellaneous petition has been filed invoking the jurisdiction of this Court under Section 528 of the BNSS, 2023 with the prayer for quashing and setting aside the entire criminal proceeding including the order dated 10.02.2025 passed by learned Special Judicial Magistrate, MP/MLA Cases, Ranchi; who has mentioned his designation as Elected MP/MLA Special Judge, Ranchi in the order dated 10.02.2025, in connection with Hindpiri P.S. case no. 122 of 2024 whereby cognizance has been taken of the offences punishable under Sections 223 / 174 of BNS, 2023 and further prayer has been made to quash the order dated 16.04.2025 passed by the said Special Judicial Magistrate, MP/MLA Cases, Ranchi in connection with the said Hindpiri P.S. case no. 122 of 2024 which has been renumbered as MP/MLA case no. 02 of 2025 whereby and where under the substance of accusation has been explained to the petitioner for having committed the offences punishable under Section 223 / 174 of BNS, 2023. 3. The Brief facts of the case is that the Assistant Election Officer Ranchi, 63, Assembly Constituency for the General Elections of the Legislative Assembly of the Year 2024, lodged a written report with Hindpiri Police Station alleging therein that on the application made by the candidate of the said election for Ranchi-63 Legislative Assembly constituency and the election agent of him, it was found that the poster of the petitioner, who was also a candidate for the said Ranchi-63 Legislative Assembly Elections of Jharkhand Mukti Morcha, was affixed between two electric poles, belonging to the Government and the same was removed by the informant; for without any permission, in a public place the banner was affixed between the two Government electric poles, in violation of the model Code of conduct. Basing upon the written report lodged by the informant, the police registered Hindpiri P.S. case no. 122 of 2024 and took up investigation of the case. Basing upon the written report lodged by the informant, the police registered Hindpiri P.S. case no. 122 of 2024 and took up investigation of the case. After completion of the investigation, police submitted charge sheet against the petitioner for having committed the offences punishable under section 223 / 174 of BNS, 2023. Learned Special Judicial Magistrate, MP/MLA Cases, Ranchi vide the order dated 10.02.2025, found sufficient materials to constitute the offence punishable under Sections 223/ 174 of BNS, 2023. On 16.04.2025, the petitioner appeared before learned Special Judicial Magistrate, MP/MLA Cases, Ranchi and learned Special Judicial Magistrate, MP/MLA Cases, Ranchi explained the substance of the accusation for the offence punishable under Section 223/ 174 of the BNS, 2023 to the petitioner, to which, the petitioner pleaded not guilty and claimed to be tried. 4. It is submitted by learned counsel for the petitioner that so far no witness has been examined by the prosecution before the learned Special Judicial Magistrate as yet. It is next submitted that in view of section 215 of BNSS, the cognizance of any offence inter alia under Section 223 ought not be taken by any court, except upon complaint in writing by any public servant or some other public servant to whom he is administratively subordinate. It is next submitted that in this case neither any public servant, who has promulgated any order or anyone superior to him, has filed any complaint in any court in writing; hence learned Special Judicial Magistrate, MP/MLA Cases, Ranchi has committed grave illegality by taking cognizance of the offence punishable under Section 223 of the BNS, 2023 and consequently has also committed illegality by explaining substance of the accusation, in respect of the said offence to the petitioner, when cognizance itself was bad in law. 5. So far as the offence punishable under Section 174 of the BNS is concerned, it is submitted by learned counsel for the petitioner that the same provides for punishment for Commission of the offence of undue influence, or personation at any election. 5. So far as the offence punishable under Section 174 of the BNS is concerned, it is submitted by learned counsel for the petitioner that the same provides for punishment for Commission of the offence of undue influence, or personation at any election. It is next submitted that the Section 172 of BNS 2023 defines personation at election and provides that if any person, at election applies for a voting paper, or votes in the name of any other person, whether living or dead, or in a fictitious name, or who having voted once at such election applies at the same election for a voting paper in his own name, and whoever abets, procures or attempts to procure the voting by any person in any such way, said to have committed the offence of personation at an election but there being no such allegation against the petitioner, hence, the petitioner cannot be stated to have committed the offence of personation. 6. It is next submitted by learned counsel for the petitioner that so far as the other components that is undue influence in respect of the offence punishable under Section 174 of BNS, 2023 is concerned, undue influence at elections has been defined in Section 171 of BNS, 2023 which provides that whoever voluntarily interferes or attempts to interfere with the free exercise of any electoral right is said to have committed the offence of undue influence at an election and some of the conduct has been defined in Section 171 (2) of the BNS, 2023 i.e. if a person threatens any candidate or voter with any injury of any kind or induces or attempts to induce a candidate or voter to believe that he or any person in whom he is interested will become or will be rendered an object of divine displeasure or of spiritual censure, shall be deemed to interfere with the free exercise of the electoral right of such candidate or voter, within the meaning of sub-section (1) of Section 171 of BNS, 2023. 7. 7. It is next submitted by learned counsel for the petitioner that there is no allegation against the petitioner of threatening any candidate or voter or inducing or attempt to induce a candidate or voter to believe that he or any person in whom he is interested, will become or will be rendered as an object of divine displeasure or of spiritual censure. So, the petitioner cannot be said to have committed the offence of undue influence and in the absence of the same, even if the entire allegations made against the petitioner are considered to be true in their entirety, still the same is insufficient to constitute the offence punishable under Section 174 of BNS, 2023, therefore, learned Special Judicial Magistrate, MP/MLA cases, Ranchi has committed a grave illegality in explaining the substance of accusation to the petitioner, in respect of the offence punishable under Section 174 of BNS 2023 also, as the said offence is not made out against the petitioner. Hence, it is submitted that the prayer as prayed for by the petitioner in this criminal miscellaneous petition be allowed. 8. Learned S.C. Mines III appearing for the State, on the other hand vehemently opposes the prayer as prayed for by the petitioner in this criminal miscellaneous petition and submits that if the allegations made against the petitioner are considered to be true, then both the offences in respect of which, the cognizance has been taken and substance of the accusation has been explained, are made out. Hence, it is submitted that this criminal miscellaneous petition being without any merit be dismissed. 9. Having heard the submissions made at the Bar and after going through the materials available in the record, it is pertinent to mention here that so far as the offence punishable under Section 223 of the B.N.S., 2023 is concerned, Section 215 of the BNSS debars any court from taking cognizance inter alia of the offence punishable under Section 223 of the BNS, 2023 or any abetment or attempt to commit such offence or any criminal conspiracy to commit such offence except on the complaint in writing by the public servant or of some other public servant to whom he is administratively subordinate. 10. 10. It is a settled principle of law that the provisions of Section 215 of BNSS which corresponds to Section 195 of the Code of Criminal Procedure is mandatory and the non-compliance of the same will render the prosecution illegally. It is relevant to refer to paragraph-33 of the judgment of the Hon’ble Supreme Court of India in the case of C. Muniappan & Others vs. State of Tamil Nadu reported in (2010) 9 SCC 567 which reads as under:- “33. Thus, in view of the above, the law can be summarised to the effect that 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. Noncompliance 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.” (Emphasis supplied) 11. Now coming to the facts of the case, in this case the undisputed fact remains that there has not been any complaint filed by any public servant in terms of the Section 215 of BNSS, 2023, thus this Court has no hesitation in holding that learned Special Judicial Magistrate, MP/MLA Cases, Ranchi has committed a grave illegality by taking cognizance of the offence punishable under Section 223 of BNS, 2023; in the absence of any complaint by the concerned public servant or anyone superior to him. Hence, the cognizance for the offence punishable under Section 223 of the BNS, 2023 taken by learned Special Judicial Magistrate, MP/MLA Cases, Ranchi in respect of the offence punishable under Section 223 of the BNS, 2023 is bad in law and consequently, explanation of the substance of the accusation in respect of the said offence is also bad in law. 12. So far as the offence punishable under Section 174 of BNS, 2023 is concerned, the essential ingredients to constitute the said offence are as under:- (i) the accused interfered or attempted to interfere with free exercise of right of voting of any electorate (ii) the accused did it voluntarily, so far as the offence in respect of the undue influence is concerned. For personation at an election, the ingredients of the offence are as follows:- (i) the accused applied for a voting paper (ii) the accused voted for any other person, who is dead or alive (iii) the accused voted under a fictitious name (iv) having once voted, the accused again applied for a voting paper for the second time, for the same election. (v) the accused procured or attempted to procure vote by any person in any of the ways mentioned at sl. No. (i) to (iii) above. 13. Now coming to the facts of the case, the only allegation against the petitioner is that a poster of the petitioner was affixed between two government electric poles, in a public place, without any permission. 14. In the considered opinion of this Court, even if this allegation is considered to be true in its entirety, still the same is insufficient to constitute the offence punishable under Section 174 of BNS, 2023.Therefore, this Court is of the considered view that learned Special Judicial Magistrate, MP/MLA Cases, Ranchi has committed a grave illegality by taking cognizance of the offence punishable under Section 174 of BNS, 2023 and explaining the substance of accusation in respect of the said offence to the petitioner, by the subsequent order dated 16.04.2025. 15. In view of the discussions made above, this Court is of the considered view that since the cognizance of neither of the offence punishable under Section 223 of BNS or Section 174 of BNS, is not sustainable in law, therefore, explaining such substance of accusation of those offences, is also not sustainable in law, therefore, continuation of the criminal proceeding against the petitioner will amount to abuse of process of law. Hence, this is a fit case where the entire criminal proceeding including the order dated 10.02.2025 passed by learned Special Judicial Magistrate, MP/MLA Cases, Ranchi in connection with Hindpiri P.S. case no.122 of 2024 be quashed and set aside the petitioner. 16. Accordingly, the entire criminal proceeding including the order dated 10.02.2025 passed by learned Special Judicial Magistrate, MP/MLA Cases, Ranchi in connection with Hindpiri P.S. case no.1 22 of 2024, is quashed and set aside. 17. In the result, this Criminal Miscellaneous Petition is allowed.