JUDGMENT HONOURABLE MR.JUSTICE JAYANT PATEL) 1. The short facts in the present petition appears to be that the petitioner was the Election Officer at the relevant point of time. The election petition was filed by respondent no.1 for challenging the election & declaration of the result of Bharod Gram Panchayat, whereby Lilaben Parmar, respondent no.2 herein was declared as elected. The Election Tribunal of the Court of Principal Sr. Civil Judge at Palanpur tried the Election Petition No.1 of 2007 under Section 31 of the Gujarat Panchayat Act. The pertinent aspect is that, there was no oral evidence led by any parties to the proceedings and based on the documentary evidence Election Tribunal found that, in fact the respondent no.1 herein had received 62 votes whereas respondent no.2 herein had received 42 votes, but because of negligence and mischief of election officer / the petitioner herein, number of votes secured was reversed and it was shown that respondent no.2 had received 62 votes and respondent no. 1 had received 42 votes. Therefore respondent no.2 was declared as elected candidate as against respondent no.1. The Tribunal ultimately set aside the election and declared respondent no.1 as elected candidate. However, the Tribunal further directed that as the election officer was found guilty, Collector, Palanpur was directed to lodge complaint against the election officer and submit his report to the Court with the complaint number within period of 15 days. It is the second direction so far as filing of the complaint is concerned, the petitioner has approached to this Court by present petition. We may record that the petitioner herein is in capacity as the then election officer and he is not concerned with the setting aside of the election order declaring original applicant/ respondent no.1 as elected candidate, but as the direction no.2 is affecting him the order of the Tribunal is challenged to that extent in the present proceedings. 2. We have heard Mr. Rathod, learned counsel appearing for the petitioner. Respondent no.1 & 2 are elected candidate as well as defeated candidate, who were also party to the proceedings in the Election Tribunal, but have chosen not to appear. We have heard Mr. Nanavati, learned AGP for respondent no.3. 3. 2. We have heard Mr. Rathod, learned counsel appearing for the petitioner. Respondent no.1 & 2 are elected candidate as well as defeated candidate, who were also party to the proceedings in the Election Tribunal, but have chosen not to appear. We have heard Mr. Nanavati, learned AGP for respondent no.3. 3. The only aspect which may be required to be considered is, whether the Election Tribunal while trying the election petition could straightaway give direction to the Collector to file criminal complaint or not?. The incidental aspect which may be required to be considered is, whether it was required for the Election Tribunal to give opportunity to the officer concerned before issuance of the direction to file criminal complaint against him. 4. As regard to subject of the election petition is concerned, as recorded herein above, nobody has made any grievance in as much as the findings of the Tribunal for declaring respondent no.1 who was original applicant before it as elected candidate and setting aside of the election whereby respondent no.2 was declared as elected candidate is not under challenge. Even on the factual aspect of securing 62 voted by respondent no.1 and securing 42 votes by respondent no.2 is also not under the challenge. However the Tribunal has recorded a finding based on the Commissioner's panchnama and documents available before it to register criminal complaint against respondent no.3/ petitioner herein. The pertinent aspect is that there was no oral evidence led before the Tribunal on the aspect as to whether said mistake or so called mischief was with any malafide purpose or not. The another aspect is that the Tribunal before giving direction to the Collector to file criminal complaint, at no point of time had put the petitioner herein who was respondent no.3 in the election petition to notice as to why the direction could not be issued by the Tribunal for filing of the criminal complaint for the alleged mischief. The another aspect is that the Tribunal before giving direction to the Collector to file criminal complaint, at no point of time had put the petitioner herein who was respondent no.3 in the election petition to notice as to why the direction could not be issued by the Tribunal for filing of the criminal complaint for the alleged mischief. Under these circumstances, we find that as there is not only breach of principles of natural justice but no inquiry was undertaken by the Tribunal for putting the party to his notice nor any oral evidence was led on the said aspect, the Tribunal could at the most directed the Election Commission who was District Collector at the relevant point of time, to examine as to whether such mistake was with any guilty mind or with some extraneous consideration or a bonafide mistake. It is true that if some illegality has come on record, the Court or the Tribunal cannot keep its eyes shut but at the same time propriety requires that the Tribunal could have directed the Collector to hold an inquiry in this regard as to whether the mistake was with any malafide purpose or bonafide. If, in that inquiry it was found that the mistake was with malafide or extraneous consideration or with some guilty mind, filing of the complainant could well be within the power of the Election Tribunal, otherwise complaint may not be filed. We may also record that, Mr. Nanavati, learned AGP is not seriously opposed to the said proposition. Hence we find that, while issuing directions straightway to the District Collector to file criminal complaint, the Election Tribunal has exceeded its power and the Election Tribunal at the most could exercise the jurisdiction to issue direction to the Collector to look into the matter as to whether it was a fit case to file criminal complaint against the petitioner herein or not. 5. It may also be recorded that when the Collector is to hold inquiry, he may consider the observations made by the Court, but at the same time if any other material is brought before him he should not be precluded from taking independent view of the matter as to whether it is a fit case to file criminal complaint against the accused/ petitioner herein or not. 6. 6. We may record that, as one complaint has already been filed being C.R. No: II-3065 of 2007 pursuant to the earlier direction of the Tribunal, which is now set aside, the Collector, if ultimately find it necessary to file another complaint in view of the aforesaid direction, he may do so. Learned counsel Mr. Rathod appearing for the petitioner has also fairly conceded that, in the event the District Collector on his own discretion finds it necessary to file complaint against the petitioner, at that stage the petitioner can not raise the grievance that for the same cause second complaint is filed since it will be the another independent complaint. 7. In view of the aforesaid observations and discussions, direction no.2 issued by the Election Tribunal in the impugned order in Election Petition No. 1 of 2007 (Annexure-E to the petition) for lodging complaint against respondent No.3 / petitioner herein is quashed and set aside, with a further observation and direction that the District Collector, Banaskantha district, or any other officer on behalf of the Election Commission shall independently examine the matter as to whether it is a fit case to file criminal complaint against the petitioner herein for the alleged mistake or the mischief as the case may be or not. If it is found by the District Collector that it is a fit case to file criminal complaint, the Collector shall be at liberty to file complaint if required after giving an opportunity of hearing the petitioner. 8. The petition is allowed to the aforesaid extent. Rule partly made absolute. No order as to cost.