TaxTMI 
TaxTMI 
2020 (9) TMI 1160
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....dings in the said matter. 2. The facts, in brief, are that: 2.1. One 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 i....
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.... 2.9.3. That there was an appeal made by the Petitioner in the video recording of the speech to a specific community seeking their votes in favour of the candidate 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 ....
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....the averments in the complaint and on being satisfied that there are reasons to believe that a non-cognisable offence is committed may direct investigation by the jurisdictional Police. In any event, 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....
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....nder Section 125 of the R.P. Act has not been alleged to have been committed. Therefore, there is no Electoral Offence which can be alleged to have been committed by the Petitioner. Section 171F of the IPC 4.9. That Section 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 c....
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....en investigate and submit a report under Sec. 173(1). On receiving the police report the Magistrate may take cognisance of the offence under Sec. 190(1)(b) and straightaway issue process. This he may do irrespective of the view expressed 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 to....
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....the argument would be fit for rejection since it is nothing but mixing up two different and distinct nature of cases as the principle and procedure applied in a case based on Police report which is registered on the basis of First Information Report cannot 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 ....
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....s contained under Section 202(2) of the Cr.P.C. for issuance of summons to the Petitioner, who admittedly is residing, outside the jurisdiction of the Magistrate, which is clear from the fact that the Magistrate has directed the Commissioner of Police, Bengaluru to serve the summons 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 appel....
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....n the opinion of the Magistrate taking cognisance of an offence, there is sufficient ground for proceeding. This Section relates to commencement of a criminal proceeding. If the Magistrate taking cognisance of a case (it may be the Magistrate receiving the complaint or to whom it has been transferred under Section 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 applic....
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.... been made out. 4.24. On all these grounds, the petition is to be allowed and the reliefs as prayed for therein ought to be granted. 5. Shri V.M. Sheelavant, learned Special Public Prosecutor for respondent No.1 submitted that 5.1. The entire procedure as required has been followed and there are serious allegations made against the Petitioner, 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 bas....
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....fficer can himself seek for permission to investigate a non-cognisable offences or as a corollary to it, it is only the informant/complainant, who is to seek permission for investigation from the Magistrate? 7.1. It would be profitable to refer to and extract Section 155 of the Cr.P.C., which reads as under: "155. Information as to non-cognisable cases and investigation of such cases.- (1) When information is given to an officer in charge of a 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. ....
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.... provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2), may take cognisance 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. (2) The Chief Judicial Magistrate may empower any Magistrate of 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, ....
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....uiry of the said Informant and on perusal of the requisition acknowledgement and information it is found that, the prima facie case is made and which requires permission from this Court for registration of offence and for further investigation. I am satisfied to grant permission to I.O., for investigation of the above said non-cognisable offence. Hence, in view of the same, proceed to pass the following; ORDER * In exercise of Sec.155(2) of Cr.P.C. the Investigating Officer of Gokak Town P.S. Gokak is accorded with permission for investigation of the said non-cognisable offence and to file report. * Intimate this order to 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 ....
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....r person with the consent of a candidate or his election agent of any gratification, to any person whomsoever, with the object, directly or indirectly of inducing-- (a) a person to stand or not to stand as, or to withdraw or not to withdraw from being a candidate at an election, or (b) an elector to vote or refrain from voting at an election, or as a reward to-- (i) a person for having so stood or not stood, or for [having withdrawn or not having withdrawn] his candidature; or (ii) an elector for having voted or refrained from voting; (B) the receipt of, or agreement to receive, 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. ....
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....(3A) The promotion of, or attempt to promote, feelings of enmity or hatred between different classes of the citizens of India on grounds of religion, race, caste, community, or language, by a candidate or his agent or any other person with the consent of a candidate or his election agent for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate.] (3B) The propagation of the practice or the commission of sati or its glorification by a candidate or his agent or any other person with the consent of the candidate or his election agent for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate. Explanation.--For the purposes of this clause, "sati" and "glorification" in relation to sati shall have 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 t....
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....) excise officers; (f) revenue officers other than village revenue officers known as lambardars, malguzars, patels, deshmukhs or by any other name, whose duty is to collect land revenue and who are remunerated by a share of, or commission on, the amount of land revenue collected by them but who do not discharge any police functions; and (g) such other class of persons in the service of the Government as may be prescribed: (h) class of persons in the service of a local authority, university, government company or institution or concern or undertaking appointed or deputed by the Election Commission in connection with the conduct of elections. Provided that where any person, in the service of the Government and belonging to any of the classes aforesaid, in the discharge or purported discharge of his official duty, makes any arrangements or provides any facilities or does any other act or thing, for, to, or in relation 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....
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....ces and not Electoral Offences. Thus, the corrupt practices cannot be said to be an offence requiring registration of the complaint hence, the registration of non-cognisable complaint under the said provision is bad in law. 8.3. With the advent of democracy and the election process there have been several aspects relating to the elections, which have resulted in litigations. With the passage of time, laws have been evolved to regulate the electoral system. These electoral laws are aimed at maintaining a level playing field, so no one gets an undue advantage over the same. 8.4. Various laws over a period of time have restrained or regulated various actions on the part of the candidate or his agent or representatives. Generally speaking, any violation of these electoral laws was regarded to be corrupt practices. Essentially any corrupt practices used by the candidate to get an unfair advantage would result in disqualification of the candidate. 8.5. The Government of India Act, 1919, for the first 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 Enquiri....
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....on and determination of exit polls; 8.9.5. Disturbances at election meetings; 8.9.6. Wrongly printing pamphlets, posters etc., 8.9.7. Violating secrecy of voting; 8.9.8. Canvassing, disorderly conduct or misconduct at the polling station; 8.9.9. Removal of ballot papers, booth capturing; selling of liquor during election etc. 8.10. There is an overlap as regards some of the aspects between electoral offences and corrupt practices. This being so for the reason that even an electoral offence if proved would result in disqualification of the candidate in terms of corrupt practices under Sections 123 of the R.P. Act. 8.11. Section 123(2) of the R.P. Act deals with the undue influence, which requires direct or indirect interference or an attempt to interfere on the part of the candidate or his agent, with the consent of the candidate or his election agent with the free exercise of any electoral right. Provided that a threat has been held out to any candidate or an elector or any other person in whom a candidate or an elector is interested, with an injury of any kind including social ostracism and ex-communication or expulsion from any caste or community or induces such a ....
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....ere are more than one returned candidate at the election and the dates of their election are different, the later of those two dates. Explanation: In this sub-section, "elector" means a person who was entitled to vote at the election to which the election petition relates, whether he has voted at such election or not. [(2) Omitted by Act 47 of 1966, w.e.f. 14-12-1966] (3) Every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition, and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition." "83. Contents of petition.-- (1) An election petition-- (a) shall contain a concise statement of the material facts on which the petitioner relies; (b) shall set forth full particulars of any corrupt practice that the petitioner alleges, including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice; and (c) shall be signed by the petitioner and verified in the manner laid down in that Code of Civil Procedure, ....
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.... contrary to the orders, and [without the consent], of the candidate or his election agent; (b) [Omitted] (c) that the candidate and his election agent took all reasonable means for preventing the commission of corrupt practices at the election; and (d) that in all other respects the election was free from any corrupt practice on the part of the candidate or any of his agents, Then the High Court may decide that the election of the returned candidate is not void." "101. Grounds for which a candidate other than the returned candidate may be declared to have been elected.-- If any person who has lodged a petition has, in addition to calling in question the election of the returned candidate, claimed a declaration that he himself or any other candidate has been duly elected and the High Court is of opinion-- (a) that in fact the petitioner or such other candidate received a majority of the valid votes; or (b) that but for the votes obtained by the returned candidate by corrupt practices the petitioner or such other candidate would have obtained a majority of the valid votes, the High Court shall after declaring th....
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....ion of that person with the candidate. Thus, the action under Section 125 can be taken even against a third party, like the Petitioner, if requirements under Section 125 are satisfied namely such person has promoted or attempted to promote on the ground of religious, caste, community or language, feeling of enmity hatred between class of citizens of India, sine qua non being the promotion of enmity. 8.21. Having carefully perused and gone through the first information placed before the Investigating Officer and in turn before the Magistrate, I find that there is no allegation as regards the promotion of enmity found in the said complaint. Even if there is a mistake in registering the complaint under Section 123(3) instead of Section 125 and the ingredients of Section 125 are taken into consideration, I do not find any allegation as regards an offence as required under Section 125 having been committed. 8.22. It is trite law that if there is a violation of Section 123 or if there is a corrupt practice, the same would only result in a proceedings under the R.P. Act for disqualification of the candidate or for voiding the result of the election in the event of such candidate ....
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....(1) Whoever voluntarily interferes or attempts to interfere with the free exercise of any electoral right commits the offence of undue influence at an election. (2) Without prejudice to the generality of the provisions of sub- section (1), whoever-- (a) threatens any candidate or voter, or any person in whom a candidate or voter is interested, with injury of any kind, or (b) induces or attempts to induce a candidate or voter to believe that he or any person in whom he is interested will become or will be rendered an object of Divine displeasure or of spiritual censure, shall be deemed to interfere with the free exercise of the electoral right of such candidate or voter, within the meaning of sub-section (1). (3) A declaration of public policy or a promise of public action, or the mere exercise of a legal right without intent to interfere with an electoral right, shall not be deemed to be interference within the meaning of this section.] Sections 171D 171D. Personation at elections.--Whoever at an election applies for a voting paper or votes in the name of any other person, whether living or dead, or in a fictitious name, or who having voted once ....
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.... in whom he is interested will become or will be rendered an object of divine displeasure or spiritual censure. 9.7. That means to say that there have to be statements made or threat given to a voter that if he were to vote in any particular manner, he may incur displeasure of the divine or censure by spiritual censure. Unless these two ingredients are satisfied, there cannot be undue influence said to be used and therefore an offence under Section 171F could not be said to be committed; 9.8. As regards undue influence, if it is to be contended that the speech of the Petitioner amounted undue influence it has to satisfy the dual requirement under Section 171C of the IPC. An ex-facie reading of the complaint does not make any allegation to satisfy the requirement of Section 171C of the IPC. Thus, when the basic requirement is not fulfilled, the criminal law cannot be set in motion, as regards an action, which does not amount to a penal offence. 9.9. Hence I answer this point by holding that in the present case on the basis of the allegation made in the complaint it cannot be prima facie concluded that the Petitioner has committed an offence under Section 171F of the IPC by ....
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....d and the complainant is not agreeable to the B-report that the enquiry is conducted under Section 200 of Cr.P.C.; in a proceedings pertaining to non- cognisable offences, the station house officer is not entitled to take cognisance of the non- cognisable offence, it is only on being directed by the jurisdictional Magistrate that he conducts an investigation to enquire as to whether there is prima facie offence made out; once the investigation leads an adverse report in terms of no offence having been made out, it is only the complainant, who can find fault with such investigation or B-report and requests the Magistrate to continue with the matter on the basis of the complaint filed by finding out defects in the investigation and/or by establishing otherwise that there is a prima facie case made out for the prosecution of the accused. In the present case, no notice was issued to the complainant, the Magistrate has rejected B- report without anyone objecting to the B-report and has taken cognisance of the alleged offence suo moto, such a procedure is neither contemplated nor sanctioned under the provisions of Criminal Procedure Code. 10.5. The Hon'ble Apex Court has in the af....
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....Amendment Act, 2005. 11.2. In the event of issuance of process against an accused residing beyond the area in which the Magistrate exercises his jurisdiction, the Magistrate is to postpone the issuance of such process against the said accused and enquire into the case himself and/or direct the 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. 11.3. No such summons could be issued without first examining the complainant and his witness if any on oath in terms of Section 200 of the Cr.P.C. Since in the present case, the Petitioner is not resident within the territorial jurisdiction of the Magistrate, the above procedure ought to have been complied with. 11.4. The registration of complaint and issuance of summons to the accused is violative of Section 202(1) and 202(1) proviso (b) of the Cr.P.C. 11.5. The question that would arise in regard to the above contention is what is the enquiry that the Magistrate would have to conduct. There would have to be an order passed under Section 202(1) of the Cr.P.C. to indicate as to why process is being issued by the M....
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....ion 171C and 171F of the IPC have also not been made out. Hence, prima facie there is no offence, which can be said to have been committed by the Petitioner requiring prosecution. Of course, this does not prevent any action to be taken against the candidate for violation of Sections 123 of the R.P. Act. 14. Hence, I summarise the findings as follows: 14.1. When a complaint has been lodged and/or information furnished of an offence to a Station House Officer, the Station House Officer cannot himself seek for permission to investigate a non-cognisable offence, unless he is the first Informant. 14.2. It is only the informant/complainant, who is to seek permission for investigation from the Magistrate. 14.3. The Informant being present before the Magistrate when an order directing investigation is passed and having been examined the requirement under Section 155 (1) are satisfied. 14.4. There would be no need for recording of a sworn statement of the Informant if the Informant were to be a public servant acting or purporting to act in the discharge of his official duties. 14.5. An action on a complaint as regards violation of Section 123 ....