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2013 DIGILAW 351 (KER)

K. B. Ganesh Kumar v. P. K. Raju

2013-04-08

S.S.SATHEESACHANDRAN

body2013
Judgment 1. Petitioner is the accused in a complaint filed by 1st respondent. Cognizance taken for the offence under Section 193 of the Indian Penal Code, for short, the 'IPC' on such complaint Magistrate ordered process to him. Petitioner has filed the above petition challenging that order, for quashing the complaint and criminal proceedings against him, as an abuse of process of the court under Section 482 of the Code of Criminal Procedure, for short, the 'Code'. 2. Annexure-I is copy of the complaint. Case of the complainant, in short, is that petitioner has given false particulars over his educational qualification in the affidavits filed by him when he contested the election on three different occasions, in 2001, 2006 and 2011, from Pathanapuram Constituency; in two publications, viz., "12th Kerala Legislative Assembly "WHO's WHO", published by Research Section, Secretariat of the Kerala Legislature in May, 2007 and, "Legislatures of Kerala" published by Secretariat of the Kerala Legislature in the year 2006; and, also, in his website in which his biography is published. Regarding his educational qualifications in the affidavits and publications made, he has given different versions, in some of them as a 'B.Com graduate" and in some others "Course Completed" and, thereby, he has committed the offences under Sections 191 and 193 of the IPC, is the case of complainant to prosecute the petitioner for such offences. Learned Magistrate recording the sworn statement of complainant and perusing the documents produced took cognizance of the offence under Section 193 of the IPC and ordered process to the accused. Annexure-II is copy of that order. Petitioner/accused seeks quashing of the criminal proceedings against him invoking the inherent powers of this Court. With the petition, he has filed some documents as Annexure-I to Annexure-V. 3. The 1st respondent in the petition, hereinafter referred to as the "complainant" resisting the petition has filed an affidavit with some documents marked as Annexures R1(a) to R1(f). 4. Learned senior counsel Sri. K. Ramakumar appearing for petitioner contended that cognizance taken of the offence on the complaint is illegal since it is vitiated by the bar under Section 195 (1) (b) (i) of the Code. 4. Learned senior counsel Sri. K. Ramakumar appearing for petitioner contended that cognizance taken of the offence on the complaint is illegal since it is vitiated by the bar under Section 195 (1) (b) (i) of the Code. In relation to an affidavit sworn to and placed with a nomination paper if false particulars are made in such affidavit, then, the authority to file a complaint thereof can only be the Returning Officer and a complaint by a third party as in the present case is clearly barred, is the submission of counsel. At best on the allegations imputed a complaint for offence under Section 125-A of the Act alone would lie, and its prosecution can be made only by a Returning Officer is the submission of counsel. Reliance is placed on an unreported decision rendered by this Court in a writ petition (W.P.(C). No.29574 of 2008), producing a copy of the judgment as Annexure-III. Complaint does not contain the essential ingredients to constitute the offence under Section 193 of the IPC which was taken cognizance by Magistrate, and, the allegations set out in the complaint clearly demonstrate that entertainability of that complaint is barred by limitation is the further submission of counsel. The above offence is imputed for giving false evidence by filing an affidavit containing false particulars, with nomination paper, and then, at the worst it would fall only under second part of 193 IPC, giving false evidence in a case other than judicial proceeding, and it is punishable only upto a term of three years, submits the counsel. A complaint filed in 2011 raising allegations over the filing of an affidavit containing false particulars with a nomination paper in 2006, to prosecute the accused, is clearly barred by limitation under Section 468 of the Code, is the submission of counsel. A complaint filed in 2011 raising allegations over the filing of an affidavit containing false particulars with a nomination paper in 2006, to prosecute the accused, is clearly barred by limitation under Section 468 of the Code, is the submission of counsel. Adverting to Section 33-A of the Representation of the People Act, 1951, for short, the 'Act', it is contended by counsel that information to be furnished by a candidate with his nomination paper is only those covered by the Act and Rules, and as such, prosecution of a candidate with respect to any statement relating to his 'educational qualification' even if the same is wrong, though it was directed to be furnished as per the notification issued by the Election Commission pursuant to directions of the Apex Court cannot be a ground to prosecute the accused for the offence under Section 193 of the IPC. Reference is also made by counsel to Rule 4-A of the Conduct of Election Rules, 1961 and Form 26 provided under the above Rules to buttress the argument that supply of information by candidate which is not mandatorily required by 'Act' and 'Rules' cannot give rise to his prosecution for a penal offence on the ground that information supplied over such matters otherwise directed was incorrect, inaccurate or even false. Learned counsel for petitioner relied on Lucy Joseph v. Elikutty James (2009 (2) KLT SN 92 (C.No.91) to contend that incorrect furnishing of particulars of educational qualification would not render Form 2A a fake as at the most it would amount only to a defect in such Form. Reliance is also placed on Harshendra Kumar D. v. Rebatilata Koley and Others ( (2011) 3 SCC 351 ) and Sushil Suri v. Central Bureau of Investigation and Another ( (2011) 5 SCC 708 ) that in order to prevent injustice or abuse of process or to promote justice, High Court may look into the materials which have significant bearing on the matter at prima facie stage and where it is shown that the proceedings commenced against the accused person is barred under law or an abuse of process of the court, it is liable to be quashed invoking the inherent powers the court. Per contra, learned senior counsel Sri.Ranjith Thampan appearing for respondent/complainant adverting to the allegations raised in the complaint submitted that cognizance taken by Magistrate to proceed against the accused ordering process to him for the offence under Section 193 of the IPC is unassailable, and, exercise of inherent powers of this Court to quash such proceedings is not allowable. Insistence of furnishing relevant information by candidates contesting election has been mandatorily prescribed under the notification issued by the Election Commission, and it was pursuant to directions given by Apex Court in two decisions, namely, Union of India v. Association for Democratic Reforms ( (2002) 5 SCC 294 ) and People's Union for Civil Liberties v. Union of India ((2003) 4 SCC 399), is banked upon by the counsel to contend that there is no merit in the submission made that there is no statutory prescription compelling a candidate to furnish information in his affidavit with the nomination true particulars of his educational qualifications. Furnishing of such information is one among the five matters insisted upon and, in fact, mandatorily directed by the Apex Court in the aforesaid decisions and that has been subsequently prescribed by issuing a notification by the Election Commission as well, submits the counsel. When that be so, it is a mandatory prescription and non-compliance thereof or furnishing false particulars of educational qualification by a candidate is a penal offence, for which he is liable to be prosecuted, according to the counsel. A provision has been made under Section 125-A of the Act to treat it as an electoral offence no way exclude the culpability of the offender for the offence under Section 193 of the IPC as well when ingredients thereof are also satisfied in relation to the false affidavit filed, is the further submission of the counsel to contend that there is no merit in the challenge raised that the offence would fall only under Section 125-A of the Act. Learned counsel also submitted that challenge raised that a prosecution can be launched only by the Returning Officer and not by a voter or any other person and there is a bar under Section 195 (1) (b) (i) of the Code in filing the complaint and cognizance taken by Magistrate is totally unworthy of any merit. Learned counsel also submitted that challenge raised that a prosecution can be launched only by the Returning Officer and not by a voter or any other person and there is a bar under Section 195 (1) (b) (i) of the Code in filing the complaint and cognizance taken by Magistrate is totally unworthy of any merit. There is no such interdiction under law, is the submission of counsel asserting that cognizance taken of the offence in the complaint is perfectly legal and it has to be proceeded further to reach its logical conclusion. No ground whatsoever has been made to quash the criminal proceedings arising from the complaint in exercise of inherent powers of this Court, and petition is only to be dismissed is the submission of counsel for complainant. 5. At the outset before considering the rival submissions made by the counsel on both sides it has to be pointed out that in a proceeding under section 482 of the Code of Criminal Procedure none of the parties thereto as of right is entitled to produce any documentary material and rely upon them in support of their respective case. However, that does not as such preclude production of document by parties and this court from looking into such materials provided they are of incontrovertible nature on which reliance can be safely placed and, further, such material has significant and decisive effect on any question arising for consideration. So much so only such documents produced by both sides which fall within the ambit of what has been stated above can be considered in appreciating the question posed on the submissions made by counsel on both sides. 6. Annexure-I is copy of the complaint. A perusal of the complaint would show complainant sought prosecution of the accused under section 191 and 193 of the Code of Criminal Procedure, of which the latter alone is a penal offence, imputing of furnishing false particulars of his educational qualification in his affidavit filed on three occasions when he contested election as a candidate from Pathanapuram Constituency in 2001, 2006 and 2011, and some publications made, two of them published by the Secretariat of the Kerala Legislature, and, one of them in his website. In the affidavits filed with the nomination paper at several points of time and also the aforesaid publications made petitioner has given particulars of his educational qualification differently, in some of them as 'a graduate of B.Com' and in some others 'B.Com course completed' is the gist of complainant's case to prosecute the petitioner for the offence of giving false evidence. Learned Magistrate on the aforesaid complaint has taken cognizance for the offence under section 193 of Penal Code against the petitioner. 7. Without going into any other aspect first and foremost it has to be taken note the case of the complainant as disclosed by the allegations raised in his complaint is over assertion or disclosure made by the petitioner with respect to his educational qualification, but, differently at various points of time from 2001 to 2011. He has asserted at times that he is a graduate in B.Com, and, completed B.Com course on some other occasions. To be fair enough no submission was made by the learned senior counsel appearing for the complainant that wrong furnishing of particulars regarding his educational qualification by petitioner in his website or in the publications made by the legislative Secretariat even assuming that it was based on information supplied by him would constitute giving of or fabricating false evidence 'in any other case' as falling under the second part of Section 193 of Penal Code. Any person for giving false particulars of his educational qualification in his website, for that reason alone, even if he is a member of legislative assembly, is not liable to be prosecuted as if he thereby has given or fabricated false evidence. Similar is the situation with respect to publications made by the legislative Secretariat regarding the bio data of members of the legislative assembly. May be, preparation and publication of such bio data of members of legislative assembly was based on information supplied and collected from such members. Similar is the situation with respect to publications made by the legislative Secretariat regarding the bio data of members of the legislative assembly. May be, preparation and publication of such bio data of members of legislative assembly was based on information supplied and collected from such members. Even if there is any descrepancy in any of the particulars regarding the bio data of members of the legislative assembly having regard to the fact that such publications are made by the legislative secretariat if at all there is any room for any prosecution in relation to false particulars thereof, the rights and immunities available to members of the legislative assembly and such publications were made by the legislative Secretariat, probably under the direction or orders of the Speaker of the Assembly cannot be totally ignored of. At any rate for the reason such publications contained particulars over the educational qualification of a member of the legislative assembly as different from the affidavit filed by him with his nomination paper, it cannot be stated that he has given false evidence in relation to such publication to prosecute him for any penal offence. So much so, in the present case at the most any prosecution of petitioner for giving false evidence can be proceeded only in respect of the false particulars, if any, given in his affidavits filed at different points of time with his nomination papers when he contested the election in 2001, 2006 and 2011. If that be so, the question is whether the complainant has made out a case, prima facie, to proceed against the petitioner for giving false particulars of his educational qualification in his affidavits filed with his nomination papers. 8. Complaint would show that no electoral offence in filing an affidavit containing false particulars as such is imputed by the complainant. After referring to the particulars regarding educational qualification stated differently in his affidavits filed with his nomination papers in 2001, 2006 and 2011 and in the publications made in the legislative Secretariat and his website, the case of the complainant to prosecute him for giving false evidence is stated in paragraph 7 and 8 thus:- 7. It is further submitted that the Accused who is legally bound by an oath to state the truth and make a declaration to the effect that he had obtained a degree certificate from Government Arts College under Kerala University. It is further submitted that the Accused who is legally bound by an oath to state the truth and make a declaration to the effect that he had obtained a degree certificate from Government Arts College under Kerala University. Now he intentionally gives fabricates false evidence before the authority to which he submits his nomination from thrice he also published by Research Section, Secretariat of the Kerala Legislature, Thiruvananthapuram from May 2007 and also Secretariat of Kerala Legislature in the year 2006 and his website. The public can very well seen. 8. The act of the Accused person come within the purview of Section 191 and 193 of the Indian Penal Code and hence he is liable to be prosecuted. The incident took place in the limit of Pathanapuram Police Station which is well within the jurisdiction of this Hon'ble Court. Hence this court has jurisdiction to entertain the case. In view of the above, it is most humbly prayed that this Hon'ble Court may be pleased to initiate criminal action against the accused under sections 191 and 193 of IPC according to the provisions of the Code of Criminal Procedure. I have already pointed out so far as the publications made by the legislative Secretariat and in the website of petitioner whatever be the false particulars of his educational qualification that would not constitute giving of false evidence to prosecute him. At best the particulars given in such publications could be made use of to test and examine correctness of the corresponding particulars in his affidavit filed with his nomination papers when he contested the election on 2001, 2006 and 2011. In the context, it is significant to note complainant has not made out a case nor even imputed, on the allegations raised in the complaint, that petitioner has committed an electoral offence in filing an affidavit containing false particulars with his nomination papers. Further more he has not set forth a definite case in which election among the three elections he filed an affidavit containing false particulars regarding his educational qualification. Petitioner has furnished his educational qualifications differently in several publications and also in the affidavit produced with his nomination papers when he contested thrice the election, that alone, is the case of the complainant to prosecute him for giving false evidence. Petitioner has furnished his educational qualifications differently in several publications and also in the affidavit produced with his nomination papers when he contested thrice the election, that alone, is the case of the complainant to prosecute him for giving false evidence. The allegations so raised to prosecute the petitioner as if it is the duty of court to find what is the correct educational qualification of petitioner after recording evidence in the case is not sufficient to take cognizance of any offence. 9. In the given facts and circumstances of the case having regard to the allegations raised in Annexure-I complaint, no offence for giving false evidence under section 193 IPC would arise. With respect to an affidavit filed with nomination papers if false particulars are stated therein it would amount an electoral offence, for which that deponent could be prosecuted under section 125A of the Act. That section reads thus:- 125A. Penalty for filing false affidavit, etc—A candidate who himself or through his proposer, with intent to be elected in an election--, (i) fails to furnish information relating to sub section (1) of section 33A; or (ii) gives false information which he knows or has reason to believe to be false; or (iii) conceals any information, in his nomination paper delivered under sub-section (1) of section 33 or in his affidavit which is required to be delivered under sub- section (2) of section 33A, as the case may be, shall, notwithstanding anything contained in any other law for the time being in force, be punishable with imprisonment for a term which may extend to six months, or with fine, or with both. The above Act is a self contained Code and in relation to an electoral offence for which specific penalty is provided thereunder the offender is liable to be prosecuted for such offence as covered by that Act. Where a specific penal provision is made under the Act providing a penalty for filing false affidavit under section 125A of the Act, without anything more, for filing such a false affidavit, that alone, no prosecution under the general penal provision of section 193 of the Penal Code is entertainable. Where a specific penal provision is made under the Act providing a penalty for filing false affidavit under section 125A of the Act, without anything more, for filing such a false affidavit, that alone, no prosecution under the general penal provision of section 193 of the Penal Code is entertainable. Further more, the penal provision under section 193 I.P.C. has to be understood giving significance to the expressions 'intentionally giving or fabricating false evidence', 'in any stage of a judicial proceeding' or 'in any other case.' Giving or fabricating false evidence in the aforesaid section whether it be in the judicial proceeding or in any other case must have been intended to form an opinion on the evidence erroneously and such forming of opinion should be touching the point material to the result of such proceeding. Viewed in that angle the declaration to be made by a candidate in his affidavit filed with his nomination paper over the matters prescribed by the election commission when he contests an election, it cannot be stated that the candidate is giving evidence by affidavit but at best only a declaration on the particulars sought for. If the candidate fails to furnish information or gives false information which he knows or has reason to believe to be false or conceals any information he is liable to be prosecuted only for the offence under section 125A of the Act, and not for the penal offence under section 193 IPC. 10. I do not find any merit in the submission made by learned senior counsel for petitioner that a prosecution under section 125A of the Act against a candidate who has committed an offence thereof can be made only by a Returning Officer. No such proposition has been made in the unreported decision rendered by this court, a copy of which is produced as Annexure III, which in fact dealt with other questions touching upon a decision rendered by the Returning Officer declining the request of a complainant to prosecute a candidate for such electoral offence. No such proposition has been made in the unreported decision rendered by this court, a copy of which is produced as Annexure III, which in fact dealt with other questions touching upon a decision rendered by the Returning Officer declining the request of a complainant to prosecute a candidate for such electoral offence. So long as there is no interdiction under the Act that prosecution for an electoral offence covered under Chapter III of the Act can be made only at the instance of the Returning Officer or any other Officer authorized by the Election Commissioner, the bar against prosecution canvassed under section 195(1)(b) of the Code of Criminal Procedure, as contended by learned senior counsel for petitioner, has no merit or force. With respect to electoral offences covered by Chapter III of the Act, subject to restrictions, if any, imposed thereunder, empowerment of Police or even a private party to prosecute an offender thereof need not be doubted. If a candidate has filed a false affidavit with his nomination paper and thereby committed an offence under section 125A of the Act, it cannot be stated that Returning Officer alone has the competency to prosecute him. No such interdiction is placed by any of the provisions of the Act. There is no merit in the challenges raised against prosecution by learned senior counsel for petitioner with reference to Section 33A of the Act and Rule 4A of the Conduct of Election Rules 1961 and Form 26 of the above Rules. In the light of the mandatory direction given by the Apex Court in the two decisions, which have been relied by the learned counsel for the complainant, namely, Harshendra Kumar's case and Sushil Suri's case referred to above, and also the notification issued by the Election Commissioner pursuant to the directions so given, it is futile to contend that such particulars covered by the directions not being covered by section 33A of the Act and Rule 4A of the Conduct of Election Rules, 1961 and Form 26 of those rules its violation cannot give rise to prosecution. Even if no statutory prescription is made notification issued by the Election Commissioner which is vested with the superintendence, direction and control of the preparation of electoral rolls and the conduct of all elections of the Parliament and the legislature of every State and election to the office of the President and Vice President held under the Constitution shall have statutory force and, that has not been legislated upon and provided under the Act and Rules cannot be a ground to doubt its statutory force as of law, and, prosecution for flouting such directions, as provided under section 125A of the Act. 11. The question of limitation canvassed over the entertainability of the complaint in the facts and circumstances of the case has got only academic value when it is shown that the offence that could be proceeded against petitioner, if at all he had filed false particulars in his affidavit with his nomination paper could be only in respect of nomination filed in 2011 and that too for the offence under section 125A of the Act. Where no such case has been made out even on the allegations raised in the complaint specifically imputing that he filed a false affidavit over his educational qualification with his nomination paper no question of taking cognizance for the aforesaid offence on the complaint would arise for consideration. Suffice to state that cognizance taken on the complaint against the petitioner for the offence under section 193 of the Penal Code is patently unsustainable and continuation of proceedings in the case is an abuse of process of court. Annexure A1 complaint and all further proceedings against the petitioner are quashed. Petition is allowed.