The Bombay high court on Friday quashed an FIR and subsequent criminal proceedings initiated against Maharashtra Navnirman Sena chief Raj Thackeray for allegedly violating the model code of conduct ahead of the civic polls in 2010.
An FIR was registered against Thackeray under Section 188 (disobedience to order by a public servant) of the Indian Penal Code at the time for violation of a police notice asking him not to stay within the limits of Kalyan Dombivali Municipal Corporation in Thane district.
A division bench of Justices Ajey Gadkari and Sharmila Deshmukh said the notice issued to Thackeray under section 149 of the Code of Criminal Procedure (giving police the power to prevent an offence) does not constitute an order duly promulgated within the meaning of Section 188 of IPC.
The bench also noted the cognisance of the offence under Section 188 IPC can be taken by the magistrate only on the basis of a complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate.
The bench allowed the 2014 petition filed by Thackeray against the First Information Report.
As per the FIR, Thackeray visited Kalyan and Dombivali area for campaigning, which was to be completed by September 29, 2010, as per a circular of the State Election Commission.
Citing the circular, a deputy commissioner of police issued a notice to Thackeray asking him not to stay within the limits of the Kalyan-Dombivali Municipal Corporation beyond 10 pm on September 29 that year.
Thackeray was also asked not to visit any political party office, residence, hotel, lodge or guest house, and in case of violation, he might face prosecution under section 126 of the Representation of The People Act.
The prosecution alleged Thackeray stayed in a house within KDMC area beyond the notified time and that he refused to accept notice served on him by a senior police inspector who visited him.
The notice was then pasted at the location concerned.
However, Thackeray continued staying there following which the FIR was lodged, as per the prosecution.
The bench, in its order, noted that mere disobedience of the order/notice without the disobedience causing or tending to cause or attracting the risk of the intended consequence does not attract the offence under Section 188 of IPC.
The chargesheet in the case was filed before the judicial magistrate, Kalyan, after completion of the probe. The magistrate took its cognisance and issued summons to Thackeray on January 10, 2011, as per court papers.
Thereafter, Thackeray appeared before the court and sought bail, which was granted on the same day.
In 2014, Thackeray approached the HC to get the FIR quashed. The HC, on April 27, 2015, granted stay on the proceedings pending his plea.
Thackeray's lawyer Sayaji Nangre had 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.
