The petitioner, who is the sole accused in C.C.No.935/12 of the Judicial First Class Magistrate Court-II, Mananthavady, which was filed for the offence punishable u/s.177, 181, 171-I of the IPC. and also u/s.10A, 125A of the Representation of People Act,1951, preferred this petition to quash Annexure-A complaint by invoking inherent jurisdiction u/s.482 of Cr.P.C. The above complaint was filed by the 2nd respondent against the petitioner in the Judicial First Class Magistrate Court-II, Mananthavady and after examination of the defacto complainant, the learned Magistrate took cognizance of the offence as per Anneuxre-D for offence u/s.125A of the Representation of People Act (hereinafter referred to as the 'Act') and u/s.171-I of IPC. The petitioner has been elected from No.17 Mananthavady (S.T. Reservation Constituency) as a candidate of Indian National Congress in the elections to the Kerala Legislative Assembly held in April-May 2011 and now she is a Minister in the Kerala Government Cabinet. Her nomination paper for contesting the aforesaid elections was approved by the Returning Officer, who is the Revenue Divisional Officer, Mananthavady and no objection was raised with regard to the acceptance of the nomination. According to the petitioner, the 2nd respondent filed Annexure-A complaint on account of the political rivalry. Prima facie no offence was made out in Annexure-A, interestingly without considering that aspect, cognizance was taken by the lower court. If trial is proceeded, it is a mere abuse of the process of the Court.
2. The 2nd respondent's allegation in the complaint was that the petitioner filed nomination papers to the Kerala Legislative Assembly Election on 24.03.2011 before the Returning Officer, who is the R.D.O, Mananthavady. She had also submitted an affidavit along with the nomination paper as contemplated by the election laws, election rules and guidelines. In the affidavit submitted by the petitioner in form 26, as per rule 4A, in page No.9 column No.9, she had sworn her highest educational qualification as “B.A from Kannur University - 2004. She fully understood the contents of the affidavit and the educational qualification was entered with her full knowledge and belief. She is not a graduate and her educational qualification is Plus Two only. Thus, by giving false affidavit, the petitioner committed the alleged offence. After getting Annexure-A complaint, the learned Magistrate examined the 2nd respondent, who is the defacto complainant and took cognizance of the offence u/s.125A of the Representation of People Act and 171-I of IPC. But, he did not take cognizance of offence u/s.177 and 181 of IPC.
3. The learned counsel appearing for the petitioner contended that there is no averment in Annexure-A that the petitioner had filed a false affidavit. Section 125A of the Act is attracted only for the violation of the Rule 33A of the above Act. Moreover, S.171-I will not attract, as the petitioner had already submitted the election accounts before the competent authority. The mistake in election account is not an offence attracting offence u/s.171-I of IPC. The petitioner is now residing at Thiruvananthapuram. There is violation of mandatory provision of Section 202 Cr.P.C. Moreover, there is inordinate delay in taking cognizance of the offence.
4. The learned counsel for the 2nd respondent contended that furnishing of false information along with the nomination papers u/s.33(4) will attract the offence u/s.125A of the Act. Even though three limbs are operated at three different ways, the violation of rules in filing the affidavit along with the nomination paper u/s.33 (1) will attract offence u/s.125A of the Act.
5. In order to appreciate the controversy involved, the relevant Section 125A of the Representation of People Act, 1951 is to be extracted which reads as follows:
“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.”
While considering the back ground of the above Section, it is clear that there are three limbs incorporated u/s.125A of the Act. Sec.125A of the Act would apply firstly when a candidate who himself or through his proposer, with intent to be elected in an election, fails to furnish information relating to sub-section (1) of section 33A, secondly, when he gives false information which he knows or has reason to believe to be false and thirdly, when he conceals any information in his nomination paper u/s.33(1) or in his affidavit which is required to be delivered under sub section (2) of Section 33A. Therefore, a candidate apart from furnishing any information which he is required to furnish under the Act or rules made thereunder in his nomination paper under 33 (1) shall also furnish the information whether he is accused of any offence punishable with imprisonment for two years or more in a pending case in which charge has been framed by the competent court. In Section 33A of the Act, 'Right to Information' was inserted by Act 72 of 2002. As per that Section, a candidate, apart from furnishing any information which he is required to furnish, under the Act and the rules made thereunder, in his nomination paper delivered under sub-section (1) of Section 33 shall also furnish the information as to whether he is accused of any offence punishable with imprisonment for two years or more in a pending case, in which a charge has been framed by the court of competent jurisdiction. Secondly, he has to furnish information whether he has been convicted for an offence other than any offence referred to in sub-section (1) or sub-section (2) or covered in sub-section (3), of section 8 and sentenced to imprisonment for one year or more. Therefore, the candidate along with the nomination paper under sub section (1) of Section 33 shall also deliver to the Returning Officer an affidavit sworn by him in the prescribed form stating the information specified in sub-section (1). By incorporating new provision, the Legislature intended only the filing of affidavit u/s.33A of the Act.
6. This Court in an unreported decision in A.Naizam Adonis House v. The Chief Electoral Officer and others (W.P.(C)No.29574/2008) held as follows:
“7. Adverting to the impugned Ext.P4, it needs to be noticed that after considering the materials which were placed before him, the Returning Officer had concluded that the complaint raised by the petitioner cannot be concluded either way and therefore, without appropriate documents being available, it would not be possible to institute any complaint against the third respondent
before the criminal court alleging commission of offence. Section 33A of the RP Act requires the filing of affidavit in relation to the particular stated therein. That does not include the requirement to make any statement regarding educational qualification. Obviously therefore, Section 125A does not apply and no offence under section 125A is made out. Averting to Section 177 IPC, the question would be whether the third respondent had knowingly furnished wrong information to public. With this, Section 195 Cr.P.C. requires to be considered. Sub Section (i) thereof provides, among other, an inhibition on the court to take cognizance of an offence punishable under Section 177 IPC except on a complaint in writing, of a public servant concerned or of some other public servant to whom he is administratively subordinate. Sub section (2) of Section 195 provides that the authority to which the complainant public servant is subordinate may order the withdrawal of that complaint. This provision has also been considered to hold that there could be an appellate power with the administrative superior to direct a public servant to institute a complaint. But that would depend upon case to case basis. Therefore, the general direction given by the Election Commission to all the Returning Officers as evidence by Annexure A is only a direction to act in conformity with the provisions of l aw, meaning thereby, directing that the public servant, i.e., the Returning Officer, shall act in terms of Section 195 and institute compliant in cases where an offence is made out. In the case in hand, the primary inference that the alleged accused (the third respondent herein) had committed the offence of knowingly furnishing false information ought to be that of the public servant, namely, the Returning Officer. On the basis of the conclusion arrived at by the Returning Officer in Ext.P14 that it is not proper to conclude so and to fie a complaint with the materials before him, the said officer cannot be found fault with for not having proceeded to initiate a complaint. Institution of a complaint necessarily presupposes the requirement that the complainant has to assert the existence of the fact situation on the basis of which the complaint is being filed. Therefore, it would be wholly inadvisable to erase the said view of the public servant, viz., the Returning Officer, in exercise of writ jurisdiction. No injustice is shown to have done. I am inclined to think this is not a fit case where the discretionary jurisdiction would be extended.”
Therefore, a close perusal of Annexure-A complaint shows that there is no material before the learned Magistrate for taking cognizance of the offence as stated. Before adverting to the rival arguments advanced by both counsel, I may go through Annexure-A complaint. In Annexure-A, nothing has been mentioned about the violation of Section 33A of the Act. In the absence of such averments, the learned Magistrate took cognizance of the offence u/s.125A of the Act.
7. The next contention put forward by the learned counsel for the petitioner is that she has furnished proper accounts before competent authority. But, the allegation in Annexure-A is that the petitioner failed to furnish proper election accounts. Apex Court in Mast Ram v. State of Punjab and another [ 1995 Supp (2) SCC 744] held that Section 171-I of IPC applies to non-maintenance of account by a member of Parliament, who contested the election and not to irregular maintenance of account. Here, the petitioner submitted the accounts but there are some mistakes in it. Section 171-I of the IPC speaks about 'non- maintaining of election accounts' which is not alleged in Annexure-A.
8. The Magistrate took cognizance of the offence u/s.125A of the Representation of People Act and 171-I of IPC without following the procedures mentioned u/s.202 Cr.P.C. Under Section 190 Cr.P.C. a Magistrate of the First Class may take cognizance of any offence (a) upon receiving a complaint of facts which constitute such offence; (b) upon a police report of such facts: (c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed. A Magistrate taking cognizance of an offence on complaint u/s.200 shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate. Provision for postponement of issue of process is mentioned u/s.202 Cr.P.C. Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance may, if he thinks fit, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction, postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding. The petitioner is working as a Cabinet Minister in the Kerala Government and she is permanently residing outside the jurisdiction of the learned Magistrate. When accused is residing outside the jurisdiction of the Court, the learned Magistrate shall comply with the statutory procedure mentioned u/s.202 Cr.P.C., which is mandatory after amendment by Act 25 of 2005.
9. Apex Court in Udai Shankar Awasthi v. State of Uttar Pradesh and another [2013 (2) SCC 435] held as follows:
“40. The Magistrate had issued summons without meeting the mandatory requirement of Section 202 Cr.P.C., though the appellants were outside his territorial jurisdiction. The provisions of Section 202 Cr.P.C. were amended vide the Amendment Act, 2005, making it mandatory to postpone the issue of process where the accused resides in an area beyond the territorial jurisdiction of the Magistrate concerned. The same was found necessary in order to protect innocent persons from being harassed by unscrupulous persons and making it obligatory upon the Magistrate to enquire into the case himself, or to direct investigation to be made by a police officer, or by such other person as he thinks fit for the purpose of finding out whether or not, there was sufficient ground for proceeding against the accused before issuing summons in such cases.”
Therefore, the violation of mandatory provision is fatal in taking cognizance of the offence.
10. Further, there is inordinate delay in filing the complaint. Section 125A provides punishment for six months or with fine or with both and Section 171-I IPC provides fine of Rs.500 alone. Section 468 Cr.P.C. was not considered by the learned Magistrate at the time of taking cognizance . Cognizance was taken, after the expiry of the limitation period. There is statutory bar u/s.468 Cr.P.C. for taking cognizance also.
11. The inherent jurisdiction u/s.482 Cr.P.C. can be invoked to make such orders as may be necessary to give effect to any order under the Code or to prevent abuse of the process of Court or otherwise to secure the ends of justice. When prima facie case is not made out against the petitioner, that is a good ground for invoking the inherent jurisdiction. Here, the averment in Annexure-A complaint shows that prima facie case is not made out against the petitioner. If trial is proceeded, it will be a mere abuse of the process of Court. On that ground alone, I quash Annexure-A complaint pending before the Judicial First Class Magistrate Court-II, Mananthavady by invoking inherent jurisdiction u/s.482 of the Code of Criminal Procedure and allow this petition.
Before parting with the above discussion, I observe that the 2nd respondent has filed a petition before the Election Commission, which is pending before that Forum for further action. In this circumstances, I make it clear that the observation made in this order will not affect the petition pending before the Election Commission.
acd P.D. RAJAN, JUDGE.