Research › Search › Judgment

Patna High Court · body

2007 DIGILAW 1814 (PAT)

Sahid Pervez v. State Of Bihar

2007-11-26

MIHIR KUMAR JHA

body2007
Judgment 1. Heard Counsel for the parties. 2. In this case, the sole petitioner, has assailed the order taking cognizance, dated 22.12.2005 passed by the Judicial Magistrate, 1st Class, Jhanjharpur in Complaint Case No. 132 of 2005 as also the revisionai order, dated 19.9.2006 passed by the Sessions Judge, Madhubani in Criminal Revision No. 380 of 2006 affirming the aforesaid order taking cognizance. 3. The case of the petitioner, as can be made out from the recitals in the complaint petition as also in this quashing application, limited for the purposes of deciding the correctness of the two orders lie in a very narrow compass. It is not in dispute that the petitioner was a Block Development Officer, Andhratharhi at the relevant point of time in the year 2004 and was entrusted the job of Assistant Electoral Officer, the Returning Officer for 2005 Assembly Election. It is also not in dispute that in course of such holding of the election the electoral roll of Jhanjharpur Assembly Constituency has to be revised in terms of the provisions made in the Representation of the People Act, 1950 (hereinafter referred to as the "Act"). It appears that on 22.11.2004 the Enumerator with the task of performing/submitting report of the existing voters list, had reported that as many as 24 persons of village Marukiya were found to be absent from their respective houses and as such their names was not fit to be retained in the voters list. The Enumerator, however, had sought the direction of the Assistant Returning Officer by his letter, dated 22.11.2004 as to what he should do in respect of such persons because at least 24 of them were putting pressure that their names should not be removed from the voters list at any cost. It has been stated by the petitioner that on the said report of the Enumerator, he had made certain recommendations and the matter was ultimately placed before the Sub-Divisional Officer, Jhanjharpur who on 25.11.2004 had passed an order for transferring the names of the persons who were not found to be present at their respective places/residences by the Enumerator in terms of the powers vested in him under Clause 5.1 of Chapter III of "HAND BOOK FOR ELECTORAL REGISTRATION OFFICERS". The said order, dated 25.11.2004 led to the issuance of a draft electoral roll in which the name of the Opposite Party No. 2, his family members and others were shown to have been transferred from one booth to another in the same constituency. It appears that on the said action taken by the electoral authorities including the petitioner, the Opposite Party No. 2 became aggrieved and had threatened the petitioner as is claimed by him in a report submitted to the police on 18.12.2004. It appears that on the said report, a proceeding under Section 107 of the Code of Criminal Procedure was drawn against the Opposite Party No. 2 and while the preventive action was taken by the law & order authorities, the final publication of the Draft Electoral Roll was also made on 3.1.2005. Thereafter, the Assembly elections of the Jhanjharpur Constituency alongwith other constituencies were held on 15.2.2005 and it is the case of the Opposite Party No. 2 that only thereafter on 2.3.2005 he had made a protest before the petitioner that it was on account of wrong reporting of facts that his name was removed from one particular place of voter list and was transferred to another voter list on a different booth as a resuit of which he alongwith his family members could not cast their votes on 15.2.2005. The Opposite Party No. 2 has claimed that on being refused by the petitioner to get his name restored in the voter list as desired by him, he had filed the present complaint on 3.3.2005. 4. From the records, it appears that thereafter the learned Magistrate on filing of the complaint petition and hqlding an enquiry under Section 202 of the Code of Criminal Procedure, had passed the impugned order on 22.12.2005 wherein he came to a finding that on the materials on record, there was a plain and simple case for constituting offences under Section 167 of the Indian Penal Code and accordingly both the accused including the petitioner was summoned to face trial. The petitioner being aggrieved by the said order, dated 22.12.2005 thereafter had filed Criminal Revision No. 380 of 2006 before the Sessions Judge, Madhubani but the same as noted above was dismissed by reiterating the order taking cognizance. The petitioner being aggrieved by the said order, dated 22.12.2005 thereafter had filed Criminal Revision No. 380 of 2006 before the Sessions Judge, Madhubani but the same as noted above was dismissed by reiterating the order taking cognizance. It may be noted that the revision application was dismissed only on the ground that the plea of sanction as raised by the petitioner could be raised at anytime and consequently, there was no flaw in the order taking cognizance. 5. Mr. Abbas Haider, learned Counsel appearing for the petitioner while assailing the correctness of both the impugned orders has submitted that as a matter of fact from the entire reading of the complaint petition, no offences under Section 167 of the Indian Penal Code can be said to have been made out and on the facts alleged it could at best be an offence under Section 32(1) of the Act, which, however, could be launched only by and under the authority as specified in Section 32(3) of the Act. Section 32(3) of the Act lays down that no Court shall take cognizance of any offence punishable under sub-section (1) unless there is a complaint made by order of, or under authority from, the Election Commission or the Chief Electoral Officer of the State concerned. Mr. Haider, therefore, has contended that as there was no scope of entertaining private complaint at the instance of the Opposite Party No. 2 or any other person, the order taking cognizance cannot be sustained. Mr. Haider also submitted that there is no dispute even as per the averments made in the complaint petition that the petitioner was the Block Development Officer, Andhratharhi and that the electoral duty were entrusted on him by virtue of holding his post and, therefore, even if he actually did not revise the electoral roll, taking the allegation of recommendation made by him for changing the booth of the Opposite Party No. 2 and his family members and thus denying them of their voting rights, to be true, this was definitely an official act on his part and, therefore, he was well protected by the provisions of Section 197 of the Code of Criminal Procedure. In other words, learned Counsel is of the view that in any event without sanction of prosecution, he could not have been subjected to the impugned order taking cognizance and that the view taken by the learned Sessions Judge on the face on records is unsustainable as he has failed to examine the facts in true perspective. 6. It was also contended on behalf of the petitioner that the remedy as against the wrong alleged in respect of the preparation/revision of electoral roll is well envisaged in the self-contained Code of Representation of Peoples Act and the Rules made therein which provides that "as against any private petition of revision of electoral roll or preparation of electoral roll, the objection has to be filed and after the final publication of such electoral roil is made, there is still another remedy of appeal against the decision before the competent authority, namely, the Chief Electoral Officer. Mr. Haider, therefore, by referring to the scheme of the Act has contended that the Opposite Party No. 2 cannot be heard to say that any wrong allegedly committed by the petitioner in exercise of his official duty was only to be subjected by way of criminal prosecution and in fact when he did not choose to avail the normal remedy, of either filing the objection or appeal, the belated complaint petition filed on 3.3.2005 after holding of the election in fact was a mala fide prosecution accentuated by way of retaliatory action on the part of the complainant opposite party because the Petitioner had already filed a complaint before the Police on 18.12.2004 alleging the intimidation and offensive language used by the Opposite Party No. 2 leading to inception of a prosecution under Section 107 of the Code of Criminal Procedure. 7. Mr. Uday Chand Prasad learned Counsel appears on behalf of the Opposite Party No. 2. He has submitted that on a plain reading of fact, paragraph nos. 4, 5 and 6 of the complaint petition, a case under Section 167 of the Indian Penal Code is clearly made out against the Petitioner. 7. Mr. Uday Chand Prasad learned Counsel appears on behalf of the Opposite Party No. 2. He has submitted that on a plain reading of fact, paragraph nos. 4, 5 and 6 of the complaint petition, a case under Section 167 of the Indian Penal Code is clearly made out against the Petitioner. In this context, he has also referred to Annexure-G of the counter affidavit, a notice dated 11.9.2004 issue"d under Section 23(4) of the Bihar Tenancy Act from which he wanted to show that the Opposite Party No. 2 was always the permanent resident of village Marukiya, and therefore, when such a notice was issued under the signature of the petitioner, the Block Development Officer, it cannot be said that he was not aware that the Opposite Party No. 2 and his family members were ordinarily residing at village Marukiya requiring no change of their names in the existing electoral roll. It was thus strongly contended by Mr. Prasad that the complaint petition should be looked into from a very different angle because the petitioner had played a dubious role in the revision of the electoral roll and depriving the complainant from his exercising his electoral right to vote. 8. In the light of the aforementioned rival contentions at the bar it is necessary for me to decide this issue as to whether an offence under Section 167 of the Indian Penal Code is made out against the petitioner or not? Section 167 of the Indian Penal Code lays down that: "a public servant charged with the duty to prepare or translate of any document either frames or prepares or translates that document in an incorrect manner yet he is aware of the fact that they are incorrect which in turn causes injury to a person can be punishable with the imprisonment for a term which may extend to three years or fine or both." 9. Thus, the first basic requirement of Section 167 of the Indian Penal Code is as to whether the person concerned is charged with the preparation or translation of any document. However from a bare perusal of the present complaint case, I do not find any averment much less an allegation that the petitioner was charged with the duty to prepare or translate a document. The reliance of Mr. However from a bare perusal of the present complaint case, I do not find any averment much less an allegation that the petitioner was charged with the duty to prepare or translate a document. The reliance of Mr. Prasad, learned counsel for the complainant, opposite party on paragraphs 4, 5 & 6 of the complaint petition is also wholly misconceived because in them also there is no mention much less an allegation that it was the petitioner who in capacity of Block Development Officer was In-charge of preparation/translation of any document. Not only that, the petitioner in paragraph 14 of the quashing application has categorically stated that he did not prepare the document rather the Enumerator had submitted the report on 22.11.2004 on which it was the Sub-Divisional Officer, Jhanjharpur who had passed the said order. Such statement in paragraph no. 14 of the quashing application has not been controverted by the Opposite Party No. 2 though he has filed a detailed counter affidavit. Thus, it is difficult to hold that the ingredients under Section 167 of the Indian Penal Code are made out in the complaint petition. In fact, the petitioner in capacity of the Block Development Officer while making recommendation on the report of the Enumerator has neither framed a document nor prepared the document nor translated the document and, therefore, it can be safely said that the essential ingredient for constituting the offence under Section 167 of the Indian Penal Code has not at all been made out against the petitioner. 10. I must however indicate here itself that even after I have arrived at the conclusion that of no offence under Section 167 I.P.C. is made out against the petitioner, that by itself could not have been sufficient to quash the entire prosecution against the Petitioner if any other offence(s) could be made out against him even under any other penal provisions of I.P.C. or any other law. It is for this purpose that I have also examined the provisions of the Act imposing the duties on the authorities/officers holding elections including preparation of the electoral roll. In my considered opinion, the only relevant provision for the purposes of the present case is Section 32(1) of the Act, which reads as follows: "32. Breach of official duty in connection with the preparation, etc., of electoral rolls. In my considered opinion, the only relevant provision for the purposes of the present case is Section 32(1) of the Act, which reads as follows: "32. Breach of official duty in connection with the preparation, etc., of electoral rolls. (1) If any Electoral Registration Officer, Assistant Electoral Registration Officer or other person required by or under this Act to perform any official duty in connection with the preparation, revision or correction of an electoral roll or the inclusion or exclusion of any entry in or from that roll, is without reasonable cause, guilty of any act or omission in breach of such official duty, he shall be punishable with imprisonment for a term which shall not be less than three months but which may extend to two years and with fine." 11. If the allegations in the complaint petition are looked into properly, an offence under Section 32(1) of the Act can be said to have been made out but the difficulty is that the moment Legislature has provided for such penal action being taken against the Officer for initiating breach of official duty in connection with the preparation of the electoral roll etc. it has also provided specifically in Section 32(3) of the Act itself in the following words: "No Court shall take cognizance of any offence punishable under sub-Section 1 of Section 32 of the Act unless there is a complaint made by order of, or under authority from, the Election Commission or the Chief Electoral Officer of the State concerned." 12. The Legislature, therefore, has specifically provided that for doing any action in election duty relating to preparation of electoral roll, no one can be proceeded and/or prosecuted unless such complaint is made by or under the order of the Election Commission or the Chief Electoral Officer. 13. In that view of the matter, I hereby hold that no offence is made out against the petitioner much less under Section 167 of the Indian Penal Code. In view of the fact that I have come to a conclusion that no offence is made out, there is no need to go into the second question of sanction as raised by the petitioner. In view of the fact that I have come to a conclusion that no offence is made out, there is no need to go into the second question of sanction as raised by the petitioner. It would, however, be relevant to note here that the petitioner in this connection has relied on a decision of the Apex Court in the case of Sankaran Moitra V/s. Sadhna Das, AIR 2006 SC 1599 where a similar case arising out of the election dispute was under consideration before the Apex Court. The Apex Court in that context has held that: "it cannot be said that for want of sanction under Section 197(1) of the Code of Criminal Procedure would not affect the jurisdiction of the court to proceed, but it was only one of the defences and as such can raise the defence at the appropriate time. Section 197 of the Code of Criminal Procedure, its opening words and the object sought to be achieved by it, and the decisions of this Court earlier cited, clearly indicate that a prosecution hit by that provision cannot be launched without the sanction contemplated. It is a condition precedent, as it were, for a successful prosecution of a public servant when the provision is attracted, though the question may arise necessarily not at the inception, but even at a subsequent stage. A decision on this question cannot be possible." 14. All that, therefore, can be said from the reading of the aforementioned binding judgment of the Supreme Court in the present context, is that in a case which relates to preparation of electoral roll a prosecution can not be launched without the prior permission or approval of the Election Commission or the Chief Electoral Officer and that at least no officer doing his official duty in relation to election or preparation of electoral roll thereto can be prosecuted without the grant of sanction. One may also take a judicial notice in this regard that every Returning Officer in a parliamentary/assembly constituency has to exercise power in relation to a large number of votes and if prosecution on a private complaint is permitted, the whole purpose to hold election in a free & fair manner would be frustrated. One may also take a judicial notice in this regard that every Returning Officer in a parliamentary/assembly constituency has to exercise power in relation to a large number of votes and if prosecution on a private complaint is permitted, the whole purpose to hold election in a free & fair manner would be frustrated. It is in this view of the matter that the legislature has rightly introduced the concept under Section 32(3) of the Act akin to one under Section 197 of the Code of Criminal Procedure laying down the requirement of grant of sanction of prosecution as a condition precedent to launch criminal proceeding against a public servant on electoral duty by safeguarding them from unnecessary harassment. 15. I must, however, here take notice of the two judgments cited before me by Mr. Prasad who has placed reliance in the case of (1) Nageshwar Prasad Singh @ N.P. Singh & Another V/s. The State of Bihar, 2004 4 PLJR 144 , and (ii) Ashok Kumar Singh V/s. The Union of India & Ors., 2007 3 PLJR 802 to contend that by now it is well settled that the question of sanction can be looked into at any stage, and therefore, the prosecution should not be nabbed at the very inception. The case of Nageshwar Prasad Singh (supra) far from supporting the contention of the Counsel for the Opposite Party No. 2 in fact answers in paragraph 8 that it is not a universal rule that the grant of sanction of prosecution can always be looked into at a subsequent stage and cannot be raised at the time of taking cognizance. In that very context, the Apex Courts judgment in the case of Abdul Wahab Ansari V/s. The State of Bihar and Others, AIR 2000 SC 3187 [: 2001(1) PLJR (SC)13] was also discussed in the said judgment and His Lordship came to the following conclusion: "In view of these facts the Apex Court held the view that whatever the appellant had done has done in performance of his official duty hence sanction of Government was necessary and the prosecution of the appellant was set aside due to being without sanction." 16. The Apex Court, therefore, has classified the cases where there is a dispute of fact as to whether such duty has been performed by the officer concerned or not in official capacity but where the facts are not disputed, as in the present case, that the petitioner had made what-ever recommendations on the revision of the electoral rolls in capacity of his being Assistant Electoral Officer, I believe that sanction of prosecution will always be a condition precedent specially when a law in this regard 31(3) of the Act provides for the same. In that view of the matter, the plea of sanction to be raised at a later stage canvassed by the counsel for as raised by the Opposite Party No. 2 must also fail. 17. Finally, it has to be kept in mind the background on which the present complaint case has been filed. It is not denied by the Opposite Party No. 2 in his counter affidavit that he became aware at least on 12.12.2004 that his name alongwith the names of his family members were transferred from one particular booth to another. The police thereafter in fact on the complaint of the petitioner dated 18.12.2004 had started a proceeding under Section 107 of the Code of Criminal Procedure against the Opposite Party No. 2. At that stage, the draft electoral roll was still under preparation but the Opposite Party No. 2 did not choose to object to such draft electoral roll. Further, he did not file any appeal under Section 24 of the Act. Against the final publication of the electoral roll, which was made on 3.1.2005, the Opposite Party No. 2 in fact has come out to say that on 15.2.2005 when he went to cast his vote alongwith his family members and was denied to cast his vote on that particular booth then he came to know about the transfer of booth and thereafter he had filed this complaint petition. The very fact that such proceeding had been taken up only as a fallout of the complaint filed by the petitioner against the conduct of the Opposite Party No. 2 on 12.12.2004, as also gathered from the initial application of the Enumerator, dated 22.12.2004 I have no hesitation in my mind that actually it is a false prosecution launched by the Opposite Party No. 2 only to harass a public servant, the petitioner who was the Block Development Officer. 18. Thus, relying on one of the three principles as laid down in R.P. Kapoors case (1960 SC 866) I hold that the present complaint petition is also mala fide. 19. Thus, for the reasons indicated above, I hereby quash the order taking cognizance dated 22.12.2005 as also the revisional order, dated 19.9.2006. 20. In the result, this application is allowed.