The revision petitioner is the complainant in Crl.M.P.No.11934/13 on the files of the Judicial First Class Magistrate's Court, Chalakkudy. He has filed the above complaint under Sections 190 and 200 of the Cr.P.C. read with Section 125A of the Representation of the People Act, 1951. The revision petitioner, in the above complaint, alleges that he is a permanent resident of Ward No.30 of Chalakkudy Municipality and a social worker. He is also the Secretary of Sanmariya Justice Forum. The respondent is the Chairman of Chalakkudy Municipality. It is the case of the revision petitioner that while the respondent was contesting Municipal Election in Chalakkudy 7th Ward, he had concealed the information regarding his assets and also the assets of his family members and the same is an offence under Section 125A of the Representation of the People Act. Hence he filed the above complaint with a prayer to take cognizance, conduct trial and punish the respondent in accordance with law.
2. The sworn statement of the revision petitioner was taken. To prove his case, he had filed copies of documents received by him under Right to Information Act. But, after considering the sworn statement, the learned Magistrate dismissed the complaint under Section 203 of the Cr.P.C., on a finding that the allegations in the compliant do not disclose the offence under 125A of the Representation of the People Act. The legality and propriety of this order are under challenge in this Revision Petition.
3. The learned counsel for the revision petitioner advanced arguments challenging the findings of the court below that the allegation against the accused in the complaint does not disclose the offence under Section 125A of the Representation of the People Act. The learned counsel fairly admitted that the provisions of the Representation of the People Act is not applicable to the instant case; but, he further contended that the allegation against the petitioner discloses the offence under Indian Penal Code, particularly, the offence under Sections 171G and 191 of the IPC. So, instead of taking cognizance under Sections 191 and 171G of the IPC, the learned Magistrate, after enquiry under Section 202 of the Cr.P.C., dismissed the complaint under Section 203 of the Cr.P.C. The learned Magistrate went wrong by not taking cognizance under the relevant section in lieu of the offence alleged in the complaint.
4. In view of the submissions at the Bar, the question to be considered is, whether there is any illegality or impropriety in dismissing the complaint under Section 203 of the Cr.P.C., on a finding that the allegations in the complaint do not disclose the offence alleged against the accused and there is no sufficient ground to proceed against the respondent?
5. Going by the impugned order, it is seen that the specific allegations levelled against the accused in the complaint are that he has concealed the details of his property and that of his relatives in the affidavit filed along with the nomination paper, and thereby he has committed the offence punishable under Section 125A of the Representation of the People Act. After analysing the relevant section, particularly Section 203 of the Cr.P.C. and Section 125A of the Representation of the People Act, the learned Magistrate found that the provisions contained in the Representation of the People Act, 1951, invariably relate to elections conducted to fill the seats in both the Houses of Parliament and Legislative Assembly. Indisputably, in the instant case, election was in Ward No.7 of Chalakkudy Municipality. I do not find any illegality in the above finding that Section 125A of the Representation of the People Act is not applicable to the instant case and even if the entire allegations in the complaint are admitted at its entirety, the allegations do not disclose the offence under Section 125A of the Representation of the People Act.
6. Thereafter, the learned Magistrate considered the question, whether the allegations in the complaint would disclose any offence under the Kerala Municipality Act, 1994? It could be seen that going by the Kerala Municipality Act, 1994, Sections 214, 108(1)(1A) and 178 are the relevant provisions relating to electoral disqualification. Section 108(1)(1A) specifically prescribes the procedure to be adopted and the documents required to be filed and the matters required to be disclosed in the affidavit filed along with the nomination paper. Section 178 provides the grounds for declaring an election to be void. According to Section 178(1) of the Kerala Municipality Act, if the details furnished by an elected candidate under Section 108(1)(1A) were vague, it is a ground for declaring the election to be void and, for the same, an Election Petition has to be filed by the aggrieved party before the Court competent to try the Election Petition. As rightly observed by the learned Magistrate, none of the provisions is provided in the Municipalities Act, making the same as an offence triable by a Magistrate.
7. Admittedly, no allegations are made in the complaint which constitute the offence under Section 171G or 191 of the IPC. I am unable to accept the argument that the learned Magistrate ought to have taken cognizance under the relevant provisions applicable to any of the law for the time being in force. I am of the opinion that under Section 202 of the Cr.P.C., a Magistrate has no power to make such a roving or fishing enquiry as to whether the allegations in the complaint would disclose any offence under any law for the time being in force in India. It is to be borne in mind that under Section 190(1)(a) of the Cr.P.C., the Magistrate is empowered to take cognizance of any offence upon receiving a complaint of facts, which constitute such offence only. It follows that “such offence” means the offence which is constituted from the allegation in the complainant, not any other. In the above analysis, I find that there is no illegality or impropriety in the impugned order under challenge.
This Revision Petition is dismissed accordingly.
Sd/-
(K.HARILAL, JUDGE)
okb.