TaxTMI 
TaxTMI 
2020 (9) TMI 1160
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....ne Laxman Allapur (informant), Executive Engineer, Karnataka Niravari Nigama was deputed on election duty as a Flying Squad by the District Election Officer, Belagavi for Gokak Constituency Bye-Elections. He had filed a complaint before the respondent No.1-Police on 26.11.2019, alleging that on 23.11.2019 between 5:00 to 6:40 p.m., while he along with one M.G.Uppar were on election duty in Valmiki Stadium, the Petitioner who was campaigning for the BJP Candidate had appealed in his speech that the Veerashaiva Lingayat Community Members vote must be consolidated, that they should not be divided and called upon the members to vote in favour of the said candidate. 2.2. This is stated to be in violation of the Election Code of Conduct, and as such, he requested respondent No.1-Police to take action against the Petitioner. 2.3. Respondent No.1-Police registered a non-cognisable case in N.C.No.24/2019 under Section 123(3) of the R.P. Act, and Section 171F of the IPC and forwarded the same to the Prl. JMFC, Gokak in pursuance of Section 155(1) of the Cr.P.C. requesting for permission to investigate. 2.4. The Prl. JMFC, Gokak, vide his order dated 26.11.2020, on perusal of the ....
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....andidate of Gokak Constituency. 2.10. The Magistrate was of the opinion that the B-report could not be accepted, there was enough material in the form of video recording indicating, prima facie, the commission of the offence as alleged, rejected the B-report. 2.11. The Magistrate came to the conclusion that there was enough material in the B-report to proceed against the Petitioner and subject the Petitioner to trial for the offences punishable under Section 123(3) of the R.P. Act and Section 171F of the IPC proceeded the take cognisance of the offences, after rejecting the B-report and directed the registration of the criminal case against the Petitioner. The Magistrate also directed the issuance of summons against the Petitioner through the Commissioner of Police, Bengaluru. 3. It is aggrieved by the above that the Petitioner has filed the above petition seeking for reliefs as aforestated. 4. Shri C.V. Nagesh, learned Senior Counsel, instructed by Shri Sandeep Patil, learned counsel appearing for the Petitioner submitted as under: Section 155 of the Cr.P.C., 4.1. Relying on Section 155(1) of the Cr.P.C., he submitted that the Investigating Officer could not have by himself....
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....nt, such a power cannot be exercised either arbitrarily or capriciously and must result in a judicial order. The judicial order does not mean extracting the entire text of the complaint and the evidence adduced before the Magistrate. What is required by law is application of mind to the material on record, satisfy himself that there is a need to investigate into the commission of the non-cognisable offence. It is only thereafter that the Magistrate under sub-Section (2) of Section 155 Cr.P.C., 1973 directs the Police Officer to investigate into the non-cognisable as otherwise, the Police Officer has no power to investigate into such an offence. Sub-Section (3) of Section 155 Cr.P.C., 1973 requires the Police Officer who receives the order of Magistrate, to exercise the same power in respect of investigation (except the power to arrest without warrant) as the officer may exercise in a cognisable case." 4.2. He also relies on the decision of this Court in W.P.No.102248/2016 in the case of Praveen Basavanneppa Shivalli vs. the State of Karnataka and others, disposed of on 11th July 2016, more particularly, paragraph No.17 thereof, which is reproduced hereunder for easy reference: "....
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....ection 171F of the IPC is also not attracted since the same relates to punishment for undue influence or personation in an election, there is no personation committed by the Petitioner. As regards undue influence, there is no undue influence exercised by the Petitioner so as to warrant invocation of Section 171F of the IPC, since the requirement of undue influence as mandated under Section 171C of the IPC are not satisfied. Hence, there is no offence, which could be said to have been committed under Section 171F of the IPC. He submitted that the proceedings are required to be quashed. Violation of Procedure to be followed on receipt of B Report 4.10. That the Magistrate has not followed the procedure to be followed upon receipt of B-report, the Magistrate ought to have issued notice to the complainant-the first Informant seeking for his acceptance or objection to the B- report. Only in the event of the first Informant challenging the B-report, the Magistrate could have rejected the B-report. The Magistrate cannot by himself reject the B report without the same being opposed by the Informant. Towards this end, notice has to be issued to the first Informant; if the Informat agrees t....
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....d by the Police in their report whether an offence has been made out or not. The Police report under Sec. 173 will contain the facts discovered or unearthed by the Police and the conclusion drawn by the Police therefrom. The Magistrate is not bound by the conclusions drawn by the Police and he may decide to issue process even if the Police recommend that there is no sufficient ground for proceeding further. The Magistrate after receiving the Police report, may, without issuing process or dropping the proceeding decide to take cognisance of the offence on the basis of the complaint originally submitted to him and proceed to record the statements upon oath of the complainant and the witnesses present under Sec. 200 Criminal Procedure Code and thereafter decide whether to dismiss the complaint or issue process. The mere fact that he had earlier ordered an investigation under Sec. 156(3) and received a report under Sec. 173 will not have the effect of total effacement of the complaint and therefore the Magistrate will not be barred from proceeding under Sections 200, 203 and 204. Thus, a Magistrate who on receipt of a complaint, orders an investigation under Sec. 156(3) and receives a ....
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....nnot be allowed to follow the procedure in a complaint case. A case based on a complaint cannot be allowed to be dealt with and proceeded as if it were a case based on Police report. 29. While in a case based on Police report, the Court while taking cognisance will straightaway examine whether a prima facie case is made out or not and will not enter into the correctness of the allegation levelled in the F.I.R., a complaint case requires an enquiry by the Magistrate under Section 200 Cr.P.C. if he takes cognisance of the complaint. In case he refuses to take cognisance he may either dismiss the complaint or direct the investigating agency to enter into further investigation. In case, he does not exercise either of these two options, he will have to proceed with the enquiry himself as envisaged and enumerated under Section 200 Cr.P.C. But, he cannot exercise the fourth option of directing the Police to submit a charge-sheet as such a course is clearly not envisaged under the Cr.P.C. and more so in a complaint case." Reliance on a recording in a Compact Disk without a Section 65 B Certificate, is impermissible. 4.14. Shri C.V Nagesh learned Senior Counsel submitted that the Magist....
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.... on the Petitioner. No enquiry having been held by the Magistrate to arrive at a conclusion that sufficient cause is made out to issue such notice. The issuance of summons being contrary to Section 202(2) of the Cr.P.C., the same is required to be quashed. 4.17. That before issuance of summons to the Petitioner, the Magistrate ought to have come to a conclusion that there are sufficient grounds for issuance of such summons and in that regard, necessary procedure thereto as laid down by the various decisions of the Hon'ble Apex Court had to be followed. In this regard he relied on 4.18. Udai Shankar Awasthi Vs. State of Uttar Pradesh and another reported in (2013)2 SCC 435, more particularly, paragraph No.40 thereof, which is reproduced hereunder for easy reference,: "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 w....
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....ion 192), upon a consideration of the materials before him (i.e., the complaint, examination of the complainant and his witnesses if present, or report of inquiry, if any), thinks that there is a prima facie case for proceeding in respect of an offence, he shall issue process against the accused. 52. A wide discretion has been given as to grant or refusal of process and it must be judicially exercised. A person ought not to be dragged into Court merely because a complaint has been filed. If a prima facie case has been made out, the Magistrate ought to issue process and it cannot be refused merely because he thinks that it is unlikely to result in a conviction. 53 However, the words "sufficient grounds for proceeding" appearing in the Section are of immense importance. It is these words which amply suggest that an opinion is to be formed only after due application of mind that there is sufficient basis for proceeding against the said accused and formation of such an opinion is to be stated in the order itself. The order is liable to be set aside if no reason is given therein while coming to the conclusion that there is prima facie case against accused, though the order need not ....
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.... it cannot at this stage be contended that there are no offences made out against the Petitioner. The same requires a proper and complete trial to be conducted; 5.2. The Magistrate having come to the conclusion that there is prima facie case, this Court therefore at this stage ought not to quash the complaint pending trial in the matter, which would establish whether the offences have been committed or not. 5.3. Though the offences complained of against the Petitioner is under Section 123 of the R.P Act 1951, it does not debar the prosecution of the Petitioner. 5.4. The offence alleged relating to an election, it is, but required that the same is looked at in a larger conspectus so as to preserve the dignity and veracity of an election. 5.5. He therefore submitted that the petition requires to be rejected. 6. On the basis of the submissions made by both the counsels, the points, which would arise for consideration of this Court are as under: (i) Whether when a complaint has been lodged and/or information furnished of an offence to a Station House Officer, the Station House Officer can himself seek for permission to investigate a non-cognisable offence or as a corollary to it....
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.... police station of the commission within the limits of such station of a non- cognisable offence, he shall enter or cause to be entered the substance of the information in a book to be kept by such officer in such form as the State Government may prescribe in this behalf, and refer the Informant to the Magistrate. (2) No police officer shall investigate a non- cognisable case without the order of a Magistrate having power to try such case or commit the case for trial. (3) Any police officer receiving such order may exercise the same powers in respect of the investigation (except the power to arrest without warrant) as an officer in charge of a police station may exercise in a cognisable case. (4) Where a case relates to two or more offences of which at least one is cognisable, the case shall be deemed to be a cognisable case, notwithstanding that the other offences are non- cognisable. 7.2. A perusal of the said provision would indicate that when information is given to an officer in-charge of a Police Station of the Commission of non-cognisable offence within the limits of such Police Station, he shall enter or cause to be entered the substance of the information in a....
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....the second class to take cognisance under sub-section (1) of such offences as are within his competence to inquire into or try 7.6. In the present case, the complaint has been filed by "any other person relating to a non- cognisable offence", hence the same would have to be treated as a private complaint, in terms of Section 200 of the Cr. P.C and procedure thereunder required to be followed. Section 200 of Cr. P.C is reproduced hereunder for easy reference. 200. Examination of complainant.- A Magistrate taking cognisance of an offence on complaint 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: Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses-- (a) if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint; or (b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under section 192: Provided further that if the Magistrate makes over th....
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....o said I.O., along with the copy of this order forthwith." 7.10. The Magistrate enquired with the Informant, perused the requisition and found that there is a prima facie case made out, requiring permission to be granted for investigation. 7.11. Even otherwise, since the Informant herein is a public servant acting or purporting to act in the discharge of his official duties as belonging to the flying squad deputed by the Election Commission, there was no need for sworn statement of the Informant to be recorded, since the Provisio to section 200 exempts the same. 7.12. In the above circumstances, it cannot be said that the order permitting the investigation has been passed only on the basis of the requisition sent by the Investigating Officer. The same has been passed after the Investigating Officer having referred the Informant to the Magistrate, who having enquired with the Informant passed the order. As such the contention of Shri C.V. Nagesh, learned Senior Counsel in this regard is liable to be rejected, the decisions relied upon by Shri C.V. Nagesh learned Senior Counsel in Crl.P.No.3082/2007 and W.P.No102248/2016 would be of no avail. 7.13. I answer the above point by hol....
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....eive, any gratification, whether as a motive or a reward-- (a) by a person for standing or not standing as, or for [withdrawing or not withdrawing] from being, a candidate; or (b) by any person whomsoever for himself or any other person for voting or refraining from voting, or inducing or attempting to induce any elector to vote or refrain from voting, or any candidate [to withdraw or not to withdraw] his candidature. Explanation.--For the purposes of this clause the term "gratification" is not restricted to pecuniary gratifications or gratifications estimable in money and it includes all forms of entertainment and all forms of employment for reward but it does not include the payment of any expenses bona fide incurred at, or for the purpose of, any election and duly entered in the account of election expenses referred to in section 78.] (2) Undue influence, that is to say, any direct or indirect interference or attempt to interfere on the part of the candidate or his agent, or of any other person 7[with the consent of the candidate or his election agent], with the free exercise of any electoral right: Provided that-- (a) without prejudice to the generality of the provi....
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....ve the meanings respectively assigned to them in the Commission of Sati (Prevention) Act, 1987 (3 of 1988).] (4) The publication by a candidate or his agent or by any other person with the consent of a candidate or his election agent], of any statement of fact which is false, and which he either believes to be false or does not believe to be true, in relation to the personal character or conduct of any candidate, or in relation to the candidature, or withdrawal, 3* * * of any candidate, being a statement reasonably calculated to prejudice the prospects of that candidate's election. (5) The hiring or procuring, whether on payment or otherwise, of any vehicle or vessel by a candidate or his agent or by any other person 4[with the consent of a candidate or his election agent], 6[or the use of such vehicle or vessel for the free conveyance] of any elector (other than the candidate himself, the members of his family or his agent) to or from any polling station provided under section 25 or a place fixed under sub-section (1) of section 29 for the poll: Provided that the hiring of a vehicle or vessel by an elector or by several electors at their joint costs for the purpose of conv....
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....tion to, any candidate or his agent or any other person acting with the consent of /the candidate or his election agent (whether by reason of the office held by the candidate or for any other reason), such arrangements, facilities or act or thing shall not be deemed to be assistance for the furtherance of the prospects of that candidate's election; 8) booth capturing by a candidate or his agent or other person.] Explanation.--(1) In this section, the expression "agent" includes an election agent, a polling agent and any person who is held to have acted as an agent in connection with the election with the consent of the candidate. Explanation.--(2) For the purposes of clause (7), a person shall be deemed to assist in the furtherance of the prospects of a candidate's election if he acts as an election agent 1* * * of that candidate.] Explanation.--(3) For the purposes of clause (7), notwithstanding anything contained in any other law, the publication in the Official Gazette of the appointment, resignation, termination of service, dismissal or removal from service of a person in the service of the Central Government (including a person serving in connection with the admini....
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....t time introduced the concept of corrupt practices, which was in essence based on the British Act of 1883, with slight modification, next came the Indian Election Offences and Enquiries Act, 1920, by virtue of which certain amendments, more particularly to Section 171 of the IPC, were brought about. Thus, starting the prosecution for corrupt practices; finally the above culminated in the Representation of People Act, 1951, which is the pre-eminent law applicable to and regulates all the aspects of an election. 8.6. The R.P. Act has distinguished any violation of the R.P. Act into corrupt practices and/or electoral offences. The difference being that for corrupt practices, any person claiming a candidate to be involved in such corrupt practices has to approach appropriate Election Commission seeking for disqualification of the candidate if such a candidate has resorted to using of corrupt practices during his/her election. 8.7. The electoral offences however, on the other hand being more than mere corrupt practices, would though result in disqualification, but would also entail criminal prosecution. Thus the degree of proof and/or the requirement in respect of the corrupt practice....
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....ested, with an injury of any kind including social ostracism and ex-communication or expulsion from any caste or community or induces such a candidate or an elector to believe that he, or any person in whom he is interested, will become or will be rendered an object of divine displeasure. Thus, Section 123(2) of the R.P. Act, there is a restrictive interpretation of undue influence, without the requirement of the provisio being fulfilled it cannot be said that there is undue influence. 8.12. Section 123(3) of the R.P. Act deals with any appeal by a candidate or his agent or by any other person with the consent of a candidate or his election agent to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language or the use of, or appeal to religious symbols or the use of, or appeal to, national symbols, such as the national flag or the national emblem, for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate: 8.13. Section 123(3A) of the R.P. Act deals with the promotion of, or attempt to promote, feelings of enmity or hatred between different classes of the cit....
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....titioner and verified in the manner laid down in that Code of Civil Procedure, 1908 (5 of 1908) for the verification of pleadings: Provided that where the petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof. (2) Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition." "84. Relief that may be claimed by the petitioner.-- A petitioner may, in addition to claiming a declaration that the election of all or any of the returned candidates is void, claim a further declaration that he himself or any other candidate has been duly elected." "100. Grounds for declaring election to be void.-- (1) Subject to the provisions of sub- section (2) if the High Court is of opinion-- (a) that on the date of his election a returned candidate was not qualified, or was disqualified, to be chosen to fill the seat under the Constitution or this Act 9 [or the Government of Union Territories Act, 1963 (20 of 1963)]; or (b) that any corrupt practice has been committed by a ret....
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....idate, as the case may be, to have been duly elected." 8.15. The R.P Act does not contemplate any action against the agent or any other person, who is acting with the consent of the candidate. As stated above, any action for violation of Section 123 of the R.P. Act leads back only to the candidate, if proved resulting in disqualification of the candidate or voiding the result of the election. 8.16. Similar provisions as under Section 123(2) and (3) of the R.P. Act are not available under Chapter III Part VII relating to Electoral Offenses. There is no provision which makes a corrupt practice under Section 123(2) or (3) of the R.P. Act as an offence under the said Chapter. Thus, no criminal prosecution can be laid on account of the violation of Section 123 of the R.P. Act against any person. Of course, if there is any violation of a penal statute or special statute, separate prosecution could always be laid. 8.17. A perusal of Section 100 read with Section 123 of the R.P Act, would indicate that the only remedy provided, as of now, is for the election to be voided, thus though the corrupt practice may be committed by an agent or a person authorised by the candidate, the action in....
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.... by him for any penal offence. 8.23. Hence I answer the above points by holding that: 8.24. An action on a complaint as regards violation of Section 123 of the Representation of Peoples Act, 1951 , i.e., on account of a corrupt practice being committed is limited to the candidate, resulting in his disqualification or voiding of his/her result in the event of such candidate having returned successfully. 8.25. An action for violation of Section 123 of the Representation of Peoples Act, 1951, can only be initiated against the candidate seeking for his/her disqualification and voiding of his/her result in the event of such candidate having returned successfully, hence no action can be taken against the agent or a person authorised by him for such corrupt practice in terms of section 123 of the Representation of Peoples Act, 1951. 8.26. Violation of Section 123 of the Representation of Peoples Act, 1951 in the present scheme of the legislation would amount to corrupt practice, providing a cause of action for filing of an election petition under Section 81 read with Section 100 and 101 of the Representation of Peoples Act, 1951; there can be penal action initiated by way of criminal ....
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....such way, commits the offence or personation at an election: [Provided that nothing in this section shall apply to a person who has been authorised to vote as proxy for an elector under any law for the time being in force in so far as he votes as a proxy for such elector. Sections 171F 171F. Punishment for undue influence or personation at an election.--Whoever commits the offence of undue influence or personation at an election shall be punished with imprisonment of either description for a term which may extend to one year or with fine, or with both. CLASSIFICATION OF OFFENCE Para I" Punishment- Imprisonment for 1 year, or fine, or both-Non-Cognisable-Bailable- Triable by Magistrate of the first class-Non-compoundable. Para II: Punishment- Imprisonment for 1 year, or fine, or both-Cognisable-Bailable-Triable by Magistrate of the first class-Non- compoundable." 9.3. Chapter IXA deals with offences relating to elections. Section 171F relates to punishment for undue influence or personation at an election. The same would require that the ingredients of an offence coming within the definition and meaning of undue influence in terms of Section 171C and personation in terms ....
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....en a B-report is filed? Can a Magistrate suo moto reject the B-report without notice being ordered on the complainant? (vii) Whether the Magistrate can suo moto take cognisance of the offence without the issuance of notice to the complainant? 10.1. Both the points being related to each other are taken up for consideration together. 10.2. As held by the Apex Court in the cases reported in H.S.Bains, Director, Small Saving-Cum- Deputy Secretary Finance, Punjab, Chandigarh (supra) and Vasanti Dubey (supra), relevant paragraphs having been extracted hereinabove; the Magistrate had the following three options, after completion of the investigation and the Police having submitted a B-report namely: i. If he agrees with police report, and finds that there is no sufficient ground for proceeding further, he may drop the proceeding and dismiss the complaint. ii. He may not agree with the police report and may take cognisance of the offence on the basis of the original complaint, under Section 190(1)(a) and proceed to examine the complainant under Section 200. iii. Even if he disagrees with the police report, he may either take cognisance at once upon the complaint, direct an enquir....
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....f notice on the complainant and/or objection on the part of the complainant is not sustainable. 10.6. Be that as it may. Even if the complainant filed objections or questioned the B report, for the Magistrate to take cognisance of offences, there should be an offence prima facie made out under Section 125 of the R.P. Act or Section 171F of IPC. 10.7. As held above, no criminal prosection can be laid for violation of Section 123 of the R.P. Act. As answered to the points above, I am of the considered opinion that the complaint as such does not make out any case under Section 125 of the R.P. Act or Section 171F of IPC. Thus the question of setting the criminal law into motion on the basis of the complaint which does not prima facie make out an offence, is not sustainable. 10.8. I answer the above points by holding that 10.9. On the filing of the B report, the Magistrate is required to notify the Informant/Complainant about the same. It is only if the Informant opposes or objects to the B report that the Magistrate can record the sworn statement of the Informant. If the sworn statement were to establish defects in the investigation, the Magistrate may set aside the B report and pr....
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....ion that there are sufficient grounds for issuing summons to such accused residing outside its jurisdiction. Such order not having been passed by the magisterate, the summons could not have been so issued. Point No.(viii) is answered accordingly. 12. Point No.(ix): (ix) Whether the Magistrate could have at the stage of taking congnizance relied upon the video recording in a compact disk, without it being accompanied by a certificate under Section 65-B of the Indian Evidence Act? 12.1. Shri C.V. Nagesh, learned Senior Counsel submitted that the compact disk could not have been referred to by the Magistrate in the absence of a certificate under Section 65-B of the Indian Evidence Act, relying upon the decision of the Apex Court in the case of Arjun Panditrao Khotkar (Supra), relevant paragraphs having been extracted hereinabove. 12.2. A reading of the entire decision of the Hon'ble Apex Court in the above matter would indicate that the electronic document cannot be considered to be evidence during trial without a certificate under Section 65-B of the Indian Evidence Act, being accompanied with it. In the present case, admittedly there is no trial, which has commenced. Thus, ....
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....nitiated against the candidate seeking for his/her disqualification and voiding of his/her result in the event of such candidate having returned successfully, hence no action can be taken against the agent or a person authorised by him for such corrupt practice in terms of section 123 of the Representation of Peoples Act, 1951. 14.7. Violation of Section 123 of the Representation of Peoples Act, 1951 in the present scheme of the legislation would amount to corrupt practice, providing a cause of action for filing of an election petition under Section 81 read with Section 100 and 101 of the Representation of Peoples Act, 1951; there can be no penal action initiated by way of criminal prosecution. 14.8. For initiation of Criminal prosecut/-ion the violation complained of should come within the ambit of Chapter III part VII of the Representation of Peoples Act, 1951, in the present case at the most the allegations can be said to come under section 125 thereof, which require the establishment of promotion of enmity or hatred as a sine qua non, which has not been so done. 14.9. In the present case on the basis of the allegation made in the complaint it cannot be prima facie concluded....