Court says MCC lacks statutory backing, dismisses violation case against PDP MLA Waheed Parra
Model Code of Conduct
cannot be classified as an order under section 188 of the IPC (now 223 of BNS) and it clearly lacks statutory backing and many of its provisions are not legally enforceable.
Additional Special Mobile Magistrate in Awantipora of southern Kashmir,
Muneer Ahmad Bhat
, in an order concerning People's Democratic Party legislator from Pulwama, Waheed ur Rehman Parra, dismissed the challan filed against the MLA under section 188 of IPC in 2024 at Awantipora police station.
The court ordered his release and discharged the bail bonds and personal bonds of the accused. The case pertains to a rally Parra organized on 27/4/2024, allegedly in violation of the Code of Conduct and without obtaining the necessary permission. The police in Awantipora had filed an FIR- 66 under section 188 of the IPC against Parra in 2024. Parra was released on bail and chargesheet was presented in this court on 14/9/2024 in absence of the accused.
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"...by no means can the Model Code of Conduct be classified as an order under section 188 of the IPC. The MCC serves solely as guidance for political parties and candidates. It was established through the consensus of political parties in India with the aim of strengthening the foundations of the political system in our country. Clearly, it lack statutory backing, and many of its provisions are not legally enforceable," read the order.
The order further stated it is the political parties themselves that have agreed to adhere to the principles outlined in this code, thus binding them to respect and follow it both in letter and spirit.
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"Even if the MCC is considered an order under section 188 of the IPC, the document MCC itself doesn't specify which public servant issued this order. This clarification is crucial, as cognizance of an offence under section 188 of the IPC can only be taken upon a complaint from the public servant whose order was violated, or from their superior," read the order. The court stated that undoubtedly, the MCC is issued by the
Election Commission of India
, a constitutional body, thus, ideally, any prosecution should be based on a complaint from the Election Commission itself.
"The challan is dismissed and the accused is released. The bail bonds and personal bonds of the accused are discharged. The seized documents/articles, if any, shall be delivered to the rightful owner/claimant who is entitled to that on execution of his personal bond and they shall be held subject to orders, if any, of the appellate court," read the order.
It further stated, "reverting to the facts of the case in the light of the principles of law laid down by the Supreme Court in the judgements mentioned in the order, it is quite vivid that the offence under section 188 of the IPC can be taken cognizance of only in accordance with section 195 (1) (a)(i) of the CrPc. Since the instant challan is without a written complaint, as such no cognizance is taken of offence under section 188 of the IPC."
"Consequently, the requirements of section 195 of the CrPC are not met in this case, rendering the prosecution merely a formality," read the order.
The court said that keeping in view, the principles of law laid down by the Supreme Court and the facts of this case, no cognizance is taken of the offence under section 188 of the IPC.
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