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2012 DIGILAW 1583 (PAT)

Sita Ram Singh v. State Of Bihar

2012-11-27

ASHWANI KUMAR SINGH

body2012
ORDER In the present writ petition filed under Articles 226 and 227 of the Constitution of India in paragraph no.1, the petitioner has made the following prayers:- “1. That the petitioner seeks indulgence of this Hon’ble Court for the following reliefs:- (i) A writ in the nature of certiorari or any other appropriate writ, order, direction quashing the First Information Report of Belhar P.S. Case No.36/12 dated 31.03.2012 instituted for offence under section 177 and 181 Indian Penal Code and section 125A (3) Panchayat Raj Act on the written report of Vikash Kumar, Block Development Officer, Belhar, Banka and its subsequent investigation. (ii) A writ in the nature of mandamus commanding the respondents to act in accordance with law and not to disturb and harass the petitioner. (iii) Any other relief to which the petitioner is found entitled to.” 2. It is contended on behalf of the petitioner that Belhar P.S. Case No.36 of 2012 dated 31.03.2012 was registered under Sections 177 and 181 of the Indian Penal Code as well as under Section 125A(3) of the Bihar Panchayat Raj Act, on the basis of the typed reported submitted by the Block Development Officer, Belhar, to the Officer-in-Charge, Belhar, Banka. In the FIR, it has been alleged that pursuant to the direction given by the Secretary, State Election Commission, Bihar, Patna, an enquiry into the complaint made by one Ashok Kahar and others was entrusted to Smt. Punam Kumari, Senior Deputy Collector, Banka. In the complaint filed by Ashok Kahar and others, it was alleged that the petitioner was convicted under Sections 147, 341/149, 323/149 and 506/149 in Belhar P.S. case No.0116 of 1997 dated 20.01.1997 corresponding G.R. Case No.1188 of 1997. He was sentenced by the trial court for six months rigorous imprisonment for the alleged offences in the said case. However, while filing the nomination paper for the Panchayat Election, 2011, the petitioner concealed information regarding his conviction and sentence. The Senior Deputy Collector, Banka, after inquiring into the matter, submitted her report to the District Magistrate, Banka, on 16.02.2012. The District Magistrate, Banka, thereafter, directed the Block Development Officer to institute FIR against the petitioner for the alleged concealment of information under Sections 177 and 181 of the Indian Penal Code as well as Section 125A(3) of the Panchayat Raj Act. The Block Development Officer, Belhar, accordingly, abided by the order given by the District Magistrate, Banka. The District Magistrate, Banka, thereafter, directed the Block Development Officer to institute FIR against the petitioner for the alleged concealment of information under Sections 177 and 181 of the Indian Penal Code as well as Section 125A(3) of the Panchayat Raj Act. The Block Development Officer, Belhar, accordingly, abided by the order given by the District Magistrate, Banka. On his information, the aforesaid FIR was registered and investigation was taken up by the police. 3. Mr. Pankaj Kumar Sinha, learned counsel appearing on behalf of the petitioner submits that the FIR is bad in the eye of law. The formate issued for giving information by a candidate contesting election for Gram Panchayat/Gram Kutchery requires to make statement as to whether the candidate was sentenced to imprisonment or penalized by imposition of fine by a court of law. However, in the present case, it is true that the petitioner was initially convicted under Sections 147, 323/149, and 506/149 and sentenced to undergo three months, six months, three months and three months rigorous imprisonment for the respective offences by Sri B.N. Mishra, the learned Judicial Magistrate, Ist Class, Banka, vide his order dated 14.08.2006, but the aforesaid judgment of the learned Judicial Magistrate was challenged in appeal vide Cr. Appeal No.85 of 2006, and the learned Additional District & Sessions Judge, Fast Track Court-III, Banka, after hearing the arguments, on behalf of the parties, in the said Appeal, while upholding the conviction modified the sentence and instead of directing the appellant to be sent to jail ordered for his release under Section 4 of the Probation of Offenders Act, 1958 after furnishing a bond of Rs.1,000/- for six months. The learned counsel submits that since the petitioner was neither sent to jail nor he was penalized with fine, he cannot be held liable for concealment of any information while filing his nomination paper in General Panchayat Election, 2011. 4. Learned counsel for the appellant further submits that even otherwise, the institution of FIR by the police is without jurisdiction. He submits that the allegations made in the F.I.R. do not disclose any cognizable offence. He submits that Sections 177 and 181 of the Indian Penal Code are non-cognizable offences. The only other offence levelled in the FIR, is Section 125A(3) of the Bihar Panchayat Raj Act. He submits that the allegations made in the F.I.R. do not disclose any cognizable offence. He submits that Sections 177 and 181 of the Indian Penal Code are non-cognizable offences. The only other offence levelled in the FIR, is Section 125A(3) of the Bihar Panchayat Raj Act. Section 125A(3) prescribes the punishment to be imposed against a candidate for giving false information or concealing the required information in the affidavit filed while filing the nomination paper for being elected in Panchayat elections. The maximum sentence prescribed for the offence under Section 125A(3) of the Panchayat Raj Act is one year. It is contended that in the Panchayat Raj Act, the offence has not been made cognizable and thus, the same would be treated as a non-cognizable offence in view of the first schedule of the Code of Criminal Procedure, wherein, classification of offences against other laws has been dealt with. 5. Learned counsel for the State, on the other hand, submits that since the FIR has already been instituted, the same needs to be investigated. He, however, concedes to the legal position that the contents of the FIR do not disclose any cognizable offence. 6. Having hard the parties, I find force in the submissions made on behalf of the petitioner. Section 155 of the Code of Criminal Procedure deals with information relating to commission of a non-cognizable offence. In terms of sub-clause(2) of Section 155 of the Code of Criminal Procedure, no police officer is empowered to investigate a non-cognizable case without the order of a Magistrate having power to try such case or commit the case for trial. 7. In terms of Section 155 of the Code of Criminal Procedure, the police officer receiving information of a non-cognizable offence must enter the substance of it in a book kept in such form as the State Government may prescribe and then refer the informant to the Magistrate. The investigation made without an order of the Magistrate in a non-cognizable case, is illegal and not curable under Section 460 or 465 of the Code of Criminal Procedure. 8. In the present case, admittedly, all the offences alleged are non-cognizable offences. 9. The investigation made without an order of the Magistrate in a non-cognizable case, is illegal and not curable under Section 460 or 465 of the Code of Criminal Procedure. 8. In the present case, admittedly, all the offences alleged are non-cognizable offences. 9. The question under what circumstances and in what categories of cases this Court can quash the FIR or a complaint in exercise of its powers under Article 226 of the Constitution of India or under Section 482 of the Code of Criminal Procedure, has been dealt with by the Hon’ble Supreme Court in number of cases. I need not, further, refer to them as in State of Haryana Vrs. Bhajanlal and Others since reported in 1992 Supp (1) SCC 335, the Hon’ble Supreme Court considered its earlier decisions, and answered the above question in paras 102 and 103 as under:- “102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulate and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155 (2) of the Code. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155 (2) of the Code. (3) Where the uncontroveretd allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, on investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient grounds for proceedings against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceedings is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with malafide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. 103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice.” 10. In view of the law laid down by the Hon’ble Supreme Court in case of State of Harayana Vrs. Bhajanlal (Supra), I find that the present case squarely false within category(2) and (4) of the judgment. In view of the law laid down by the Hon’ble Supreme Court in case of State of Harayana Vrs. Bhajanlal (Supra), I find that the present case squarely false within category(2) and (4) of the judgment. Once, I reach to the conclusion that the FIR do not disclose cognizable offence, the investigation by police officers under Section 156(1) of the Code of Criminal Procedure without the order of a Magistrate is wholly unjustified in view of Section 155(2) of the Code of Criminal Procedure. 11. I further find force in the submission made on behalf of the petitioner that there was no concealment of information as the Panchayat Election was held in 2011 and on 30.05.2009 itself, the Appellate Court had modified the sentence in terms of Section 4 of the Probation of Offenders Act. The petitioner was neither imposed with any fine nor sentenced to any imprisonment. Though, he was convicted but was finally set free under Section 4 of the Probation of Offenders Act on furnishing a bond of Rs.1,000/- for six months, which period had already expired long back. In terms of Section 12 of the Probation of Offenders Act, 1958, a person convicted of the offence but released on probation does not suffer any disqualification attached to a conviction. 12. In that view of the matter, when the desired affidavit only required as to whether the candidate was sentenced to imprisonment or penalized with fine by a court of law, non-mention of the same by the petitioner, while filing the nomination paper cannot be construed as concealment of fact in terms of Section 125A(3) of the Bihar Panchayat Raj Act as the petitioner was neither sentenced to imprisonment nor penalized by imposition of fine by any court of law. 13. In view of the discussions made, hereinabove, in my view, allowing the investigation of Belhar P.S. Case No.36 of 2012 dated 31.03.2012, would not only be an abuse of the process of court but would also be without jurisdiction. Accordingly, the FIR of the Belhar P.S. Case No.136 of 2012 dated 31.03.2012, as contained in Annexure-1 to the writ petition, and the consequential investigation of the aforesaid case are hereby quashed. 14. The writ petition stands allowed.