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2007 DIGILAW 1347 (PAT)

Vijay Anand v. State Of Bihar

2007-08-14

MIHIR KUMAR JHA

body2007
Judgment 1. Heard counsel for the petitioner and the State. The opposite party No. 2 has not chosen to appear despite service of notice on him on 31.1.2007 vide flag A of the service report. 2. In this application the petitioner has made a prayer for quashing the entire proceeding in Complaint Case no. 271 of 2006 including the order dated 18.7.2006 passed by the Addl. Chief Judicial Magistrate, Naugachia, directing the police, under Section 156(3) of the Code of Criminal Procedure, to institute the case and investigate the same on the basis of a complaint petition filed by the opposite party no. 2. 3. Learned counsel for the petitioner has submitted that the allegation made in the petition of complaint is out and out a civil dispute arising out of the election of Gram Panchayat and therefore whether a false affidavit was given and was accepted by the petitioner in exercise of his official power in the capacity of Returning Officer on the basis of the report of the Officer-in-Charge, the same cannot be made a subject matter of criminal case. He further contends that there are specific provision in the Constitution of India as well as in the Gram Panchayat Act prohibiting any court to deal with the dispute relating to the election. In this context learned counsel for the petitioner has placed reliance on Article 243-0(b) of the Constitution of India wherein it has been provided that no election to any Panchayat shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any Law made by the Legislature of a State. He has further placed reliance on Section 138(Kha) of Gram Panchayat Act wherein it has been provided that the election of a Panchayat will not be called in question except by an election petition presented before the prescribed authority. Learned counsel has also referred to Sections 136 and 137 to explain that any dispute relating to election can be only looked into under the aegis of Gram Panchayat Act itself. 4. Learned counsel has also referred to Sections 136 and 137 to explain that any dispute relating to election can be only looked into under the aegis of Gram Panchayat Act itself. 4. Learned counsel further submits that even if the facts as alleged in the complaint petition is accepted to be true, it will be at best constitute an offence under Section 171(g) of the Indian Penal Code inasmuch as it has been provided therein whoever with intent to affect the result of an election makes or publishes any statement purporting to be a statement of fact which is false and which he either knows or believes to be false or does not believe to be true, in relation to the personal character or conduct of any candidate shall be punished with fine. He further contends that on the face of Section 171(g) of the Indian Penal Code, it cannot be even remotely suggested that the alleged offence in the complaint petition such as Sections 406, 420, 457, 458, 471 and 120(b)/34 of the Indian Penal Code could be made out specially when all that has been alleged that the successful candidate in the election of Panchayat whose nomination paper was declared to be valid by the petitioner had some criminal antecedent and yet the petitioner either negligently or collusively accepted the false affidavit of such candidate that he had no criminal antecedent. Learned counsel in this context had also referred that such acceptance of the character and criminal antecedent of the successful candidate was not at his own instance but was based on the report of the concerned Officer-in-Charge who was the only person from whom the petitioner in the capacity of the Returning Officer had called for the report with regard to the criminal antecedent of the petitioner and consequently had placed reliance while declaring the nomination paper to be valid. 5. On the other hand the learned counsel for the State has submitted that the impugned order dated 18.7.2006 sending the complaint for registering a police case and its investigation by the police is well within the ambit of Section 156(3) of the Code of Criminal Procedure. 5. On the other hand the learned counsel for the State has submitted that the impugned order dated 18.7.2006 sending the complaint for registering a police case and its investigation by the police is well within the ambit of Section 156(3) of the Code of Criminal Procedure. He has further submitted that the order of the court below directing investigation by police with regard to an election dispute cannot be faulted on the ground of its being in teeth of Article 243-0(b) of the Constitution of India and Section 138(Kha) of the Gram Panchayat Act because what is being questioned in the complaint petition is not the result of an election rather the criminal act on the part of the petitioner while performing an election duty. 6. The plea that the present complaint is not maintainable in view of Article 243-0(b) of the Constitution of India and/or Section 138(Kha) of Bihar Panchayat Raj Act, 2006 is fit to be rejected inasmuch as what has really been imposed as a bar to interference by Courts in electoral matters is that no election to any Panchayat shall be called in question except by an election petition. Apparently, in the complaint case, the complainant has not called any election in question rather his case is that in course of examination nomination paper of the returned candidate, certain offences were committed both by the candidate himself by giving a false declaration as also by the petitioner in capacity of the Electoral Officer in inspecting the nomination paper. In view of the fact that the scope of complaint case is not at all related to questioning of the result of the election, the submission on behalf of the petitioner that such criminal prosecution was barred is absolutely misconceived. This aspect in fact also gets more clarified from the perusal of Section 138(Kha) of the Bihar Panchayat Raj Act, 2006 where again it is the only result of an election which has to be assailed or questioned before the prescribed authority by an election petition. I have already held above that in the complaint case, the petitioner has not and in fact cannot question the result of the election. I have already held above that in the complaint case, the petitioner has not and in fact cannot question the result of the election. His case is confined only to the allegations that the three accused persons, namely, Manas Harijan @ Mandho Harijan, the returned candidate in election, had submitted a false affidavit as with regard to his criminal antecedent and the same was wrongly verified by the one Binod Narayan, Sub-Inspector of Police and ultimately accepted by the petitioner in capacity of the Returning Officer at the time of screening of the nomination paper in course of declaring it to be valid nomination paper. 7. On perusal of complaint, thus, this much is clear that the complainant had made main allegation that the returned candidate Manas Harijan was also known as Mandho Harijan that he and that Mandho Harijan had criminal antecedent and yet he (Manas Harijan) had submitted a false affidavit that he had no criminal antecedent. The entire tenor of the complaint petition containing allegations is only against Manas Harijan @ Mandho Harijan and it is said that the Officer-in-Charge of Gopalpur Police Station has submitted a false verification report that Manas Harijan and Mandho Harijan were two persons and were not one and the same. In this context, it has been alleged that Manas Harijan @ Mandho Harijan had knowingly and interestingly submitted a false affidavit that he had no criminal antecedent and the Officer-in-Charge had submitted a false report. It has been suggested thereafter that the petitioner in capacity of electoral officer had intentionally accepted the nomination papers of Manas Harijan and ultimately he was elected as the Mukhiya. It is thus apparent from a bare reading of the entire complaint petition that no offence is made out against this petitioner, the Block Development Officer, acting as the Electoral Officer in respect of the elections of Gopalpur (Dimaha) Gram Panchayat. It is thus apparent from a bare reading of the entire complaint petition that no offence is made out against this petitioner, the Block Development Officer, acting as the Electoral Officer in respect of the elections of Gopalpur (Dimaha) Gram Panchayat. In this regard I have also taken into account the provisions of Section 171(g) of the Indian Penal Code and I am of the view that even the offence of Section 171(g) of the Indian Penal Code is not made out at least against the petitioner because there is no allegation that the petitioner had manufactured or procured the affidavit of Manas Harijan or that the report submitted by the police officer showing no criminal history of Manas Harijan was submitted at the instance of the petitioner. 8. From the order, dated 18.7.2006 passed by the Court below, it is apparent that on receipt of the complaint on 10.7.2006, the Magistrate had only directed the police to register a police case and submit a report under Section 173 of the Code of Criminal Procedure after conducting the investigation. This part of the order dated 18.7.2006 cannot be said to be illegal but what has been done by the Magistrate thereafter in the same order is that he has also directed the Inspector of Police of Naughachia to personally investigate the case. This recourse however was not open to the learned Magistrate because once the police case had been registered, its manner or personnel of investigation cannot be dictated by the Court as has been held in the case of State of Bihar & Another V/s. J.A.C. Saldanna & Others, AIR 1980 SC 326 . It is true that the Officer-in-Charge of Gopalpur Police Station was also one of the accused in the case and if that was the reason for the learned Magistrate to direct the Inspector of Police to personally investigate into the case, it was all the more necessary that he ought to have himself proceeded with the complaint case itself without directing the police to register the case and investigate the same. 9. Be that as it may, as I have already held above that no offence at least as against the petitioner is made out, the prosecution of the petitioner in the Complaint Case No. 271 of 2006 and any police case so instituted on the basis of the aforementioned complaint case shall stand quashed. 9. Be that as it may, as I have already held above that no offence at least as against the petitioner is made out, the prosecution of the petitioner in the Complaint Case No. 271 of 2006 and any police case so instituted on the basis of the aforementioned complaint case shall stand quashed. 10. In the result, this application is allowed and the prosecution of the petitioner, Vijay Anand, in Complaint Case No. 271 of 2006 is hereby quashed.