This Criminal Original petition has been filed under Section 482 of Criminal Procedure Code, to call for the entire records and quash the Charge Sheet in C.C.No.171 of 2011 filed by the respondent on the file of the Learned Judicial Magistrate I, Dindigul, in Crime No.463 of 2011 on the file of the respondent police.
2. The petitioner, who is the sole accused in C.C. No. 171 of 2011 has been charged for the offence under
Section 4(1) r/w 4(A) of Tamil Nadu Open Places (Prevention of Disfigurement) Act, 1959.
3. The case of the prosecution is that on 10.04.2011, at about 4.10 p.m., an Election Campaign Meeting, to introduce the candidates representing Bharathiya Janatha Party, was conducted at Manikoondu Road, Dindigul, in which, the Senior Leader of the Party Mr.L.K.Advani, who is the opposition Party Leader of the Parliament has attended the meeting. At that time, it is alleged that Bharathiya Janatha Party's flags were erected by violating the code of election conduct. The petitioner, being the District Secretary of Bharathiya Janatha Party had been implicated in the abovesaid case. In this context, the P.A., to Regional Divisional Officer, has made a complaint against the petitioner on the basis of which a case was registered in Crime No.463 of 2011. Subsequently, after investigation, the charge sheet was filed in C.C.No.171 of 2011 on the file of the learned Judicial Magistrate No.II, Dindigul, against which, the present Criminal Original Petition is filed.
4. The learned counsel for the petitioner would submit that the petitioner is one of the candidates in the election and he is in-charge of the entire District. He is not aware of the person, who erected the flags in the place of occurrence. The de-facto complainant without conducting any enquiry, filed the complaint before the respondent/Law Enforcing Agency. The petitioner did not tie any flag in any particular place. He would further submit that there is absolutely no averment or allegation against the petitioner that he has either instigated or instructed any one to do the said act as alleged by the prosecution.
5. Heard the learned counsel appearing for the petitioner and the learned Government Advocate(Criminal side) appearing for the first respondent.
6.
Section 4 (1) of the Tamil Nadu Open Places (Prevention of Disfigurement) Act, 1959, provides for penalty for unauthorised disfigurement by advertisement. The said provision is extracted hereunder: ?4.(1) Penalty for unauthorised disfigurement by advertisement- Subject to the provisions of Section4-A, whoever affixes to or inscribes or exhibits on, any place open to public view any advertisement without the written consent of the owner or occupier or person in management of the property in which such place is situated shall be punished with imprisonment of either description for a term which may extend to three months or with fine which may extend to two hundred rupees, or with both.?
7. A reading of the above Section would clearly show that whoever affixes to or inscribes or exhibits on, any place open to public view any advertisement without the written consent of the owner or occupier or person in management of the property in which such place is situated shall be punished with imprisonment of either description for a term which may extend to three months or with fine which may extend to two hundred rupees, or with both.
8. In this context, it is relevant to extract below the relevant portion of the judgment of the Hon'ble Apex Court in R.P.Kapur Vs. State of Punjab [AIR 1960 SC866] [AIR p.869, para 6].
''(i) where it manifestly appears that there is a legal bar against the institution or continuance of the proceedings e.g. want of sanction;
(ii) 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;
(iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge.''
9. Admittedly, there is no allegation against the petitioner that he involved in the alleged activity, warranting the penalty under Section 4(1) of the Act. It is one thing to say that the petitioner was a candidate in the Election and another thing to say is that the petitioner has committed an offence under Section 4(1) of the Act without any material for such complaint. Therefore, in the absence of any averment to implicate the petitioner, the proceedings against the petitioner cannot be sustained.
10. However, insofar as the petitioner is concerned, for the reasons stated above, this Court is of the opinion that the proceedings pending in C.C.No.171 of 2011 on the file of the Learned Judicial Magistrate No.I, Dindigul, is liable to be quashed.
11. In the result, this Criminal Original Petition is allowed and the charge sheet in C.C.No.171 of 2011 on the file of the learned Judicial Magistrate No.I, Dindigul, is quashed. Consequently, connected miscellaneous petitions are closed.
To:
1.The Judicial Magistrate No.I, Dindigul.
2.The Inspector of Police, Town North Police Station, Dindigul.
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
.