A Kashmir court has dismissed the case against PDP leader Waheed Parra, saying no proper complaint was filed under the law. The court ruled that the Model Code of Conduct is not legally binding.
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Jammu and Kashmir: A local court in Awantipora, Kashmir, gave a big relief to PDP leader and Member of Legislative Assembly (MLA) Waheed-ur-Rehman Parra by rejecting the criminal case filed against him.
The case was related to an alleged violation of the Model Code of Conduct (MCC) during the 2024 Jammu and Kashmir Assembly elections.
Parra was earlier booked by the Awantipora police for allegedly holding a roadshow in Pulwama on 27th April 2024 without taking prior permission from authorities. A charge-sheet was filed by police under Section 188 of the Indian Penal Code (IPC), which deals with disobedience of an order given by a public servant.
However, the Additional Special Mobile Magistrate, Muneer Ahmad Bhat, clearly said that the court cannot accept this case because there was no written complaint from a proper public servant as required by law under Section 195(1)(a) of the Criminal Procedure Code (CrPC).
The court also explained that the MCC (Model Code of Conduct) is not a legal “order” under the meaning of Section 188 of IPC.
“By no means can the Model Code of Conduct be classified as an order under section 188 of the IPC. The Model Code of Conduct 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 lacks statutory backing, and many of its provisions are not legally enforceable,”
-the order said.
Even if we try to consider MCC as an order under Section 188 of IPC, the Model Code of Conduct itself does not mention which public servant issued the order, the court added.
“This clarification is crucial, as cognizance of an offence under Section 188 of IPC can only be taken upon a complaint from the public servant whose order was violated, or from their superior. Undoubtedly, the Model Code of Conduct 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. Consequently, the requirements of Section 195 of the Cr.P.C. are not met in this case, rendering the prosecution merely a formality,”
-the order stated.
After Parra was booked, the police filed a chargesheet for violating Section 188 IPC. The case was then presented before Judge Muneer Ahmad Bhat.
Parra’s lawyer argued that the court cannot legally take action on this chargesheet because there was no written complaint attached, which is compulsory under Section 195(1)(a) of CrPC.
On the other hand, the prosecution lawyer argued that the evidence collected during the investigation showed that Parra had clearly broken the law under Section 188 of IPC. According to them, since there was enough evidence, the court could proceed with the case.
After listening to both sides, the court said that the prosecution failed to show which public servant’s lawful order Parra had disobeyed. Also, the court pointed out that no written complaint was filed by the Election Commission or its authorized officer. This violated the necessary legal procedure.
The court made it clear that the word ‘complaint’ as defined in Section 2(d) of CrPC does not include a police report. So, the police chargesheet without a proper complaint does not fulfill the legal requirement under Section 195. Because of this, the whole prosecution process becomes legally invalid.
The court further explained that the Model Code of Conduct is not a law and cannot be enforced like one. It is a mutual agreement between political parties, followed during elections as a moral guide. It does not have the power of law unless a proper legal order is issued by a competent public authority.
So, the court decided to cancel the chargesheet and end all legal proceedings against Parra.
The court also ordered that any documents or items taken during the investigation should be returned to the owner once they give a personal bond.
Additional Public Prosecutor Ruksana represented the Union Territory of Jammu and Kashmir.
Advocate Zahid and his team appeared for Waheed Parra.
CASE TITLE:
UT of J&K Through SHO P/S Awantipora V/s Waheed ur Rehman Parra.
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