Karnataka High Court
Dr. Shailendra Beldale vs Sri. Rajkumar Madki on 7 March, 2025
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
1
Reserved on : 05.12.2024
Pronounced on : 07.03.2025
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 07TH DAY OF MARCH, 2025
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
CRIMINAL PETITION No.2756 OF 2024
C/W
WRIT PETITION No.7458 OF 2024 (GM - RES)
IN CRIMINAL PETITION No.2756 OF 2024
BETWEEN:
SMT. MANJULA S., @ MANJULA LIMBAVALI
W/O SRI ARAVIND LIMBAVALI
AGED ABOUT 48 YEARS
OCC: MLA,
ADDRESS: NO.06, RENUKA NILAYA,
9TH CROSS, ANNAYAPPA COLONY
NEW THIPPASANDRA, HAL 3RD STAGE,
BENGALURU - 560 075.
... PETITIONER
(BY SRI VENKATESH P.DALWAI, ADVOCATE)
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AND:
SRI NAGESH T., @ NALLURHALLI NAGESH
S/O LATE THIPPAIAH,
AGED ABOUT 50 YEARS,
ADDRESS: NO.39,
LUMBINI VICTORIAN LAYOUT
NALLURHALLI, WHITEFIELD POST
BENGALURU - 560 066.
... RESPONDENT
(BY SRI RANGASWAMY B., ADVOCATE)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., PRAYING TO SET ASIDE THE ORDER DATED 05.03.2024
PASSED BY THE LEARNED 42ND A.C.M.M BENGALURU (SPL.COURT
FOR TRIAL OF CASES FILED AGAINST SITTING AS WELL AS
FORMER MPs/MLAs TRIABLE BY MAGISTRATE IN THE STATE OF
KARNATAKA) IN CC..NO.7393/2024 (PCR NO.1835/2024)
CONSEQUENTLY QUASH ENTIRE PROCEEDINGS ON ITS FILE FOR
THE OFFENCES P/U/S 125-A OF REPRESENTATIVE OF PEOPLES ACT
1951, PRODUCED AT ANNEXURE-A.
IN WRIT PETITION No.7458 OF 2024
BETWEEN:
DR. SHAILENDRA BELDALE
S/O SRI KASHINATH BELDALE,
AGED ABOUT 49 YEARS,
RESIDING AT NO.350,
CHITTAWADI VILLAGEWADI VILLAGE,
BIDAR TALUK,
BIDAR DISTRICT - 585 403.
... PETITIONER
(BY SRI M.B.NARGUND, SR.ADVOCATE FOR
SRI GOURISH SUBHASH, ADVOCATE)
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AND:
SRI RAJKUMAR MADKI
S/O SRI BASAPPA MANHALLI,
AGED ABOUT 46 YEARS,
RESIDING AT MANHALLI, BIDAR,
KARNATAKA - 585 403.
... RESPONDENT
(BY SRI PRABHULING K.NAVADGI, SR.ADVOCATE FOR
SRI ASHWIN C., ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA READ WITH SECTION 482 OF
CR.P.C., PRAYING TO i) TO CALL FOR THE ENTIRE RECORDS
PERTAINING TO THE CC NO. 29813/2023 ON THE FILE OF THE 42ND
ADDL. C.M.M. 42ND ADDL. C.M.M. (SPECIAL COURT FOR TRAIL OF
CASE AGAINST SITTING AS WELL AS FORMER MPS/MLAS,
TRAILABLE BY MAGISTRATE IN THE STATE OF KARNATAKA) AT
BENGALURU; ii) SET ASIDE THE ORDER OF TAKING COGNIZANCE
AND ISSUING SUMMONS DATED 30/09/2023 IN PCR
NO.9254/2023 VIDE ANNEXURE - A AND 24/11/2023 IN PCR
NO.9254/2023 VIDE ANNEXURE - B RESPECTIVELY, PASSED BY
THE 42ND ADDL. C.M.M. (SPECIAL COURT FOR TRAIL OF CASES
AGAINST SITTING AS WELL AS FORMER MPS/MLAS, TRAILABLE BY
MAGISTRATE IN THE STATE OF KARNATAKA) AT BENGALURU AND
ETC.,
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THESE PETITIONS HAVING BEEN HEARD AND RESERVED FOR
ORDERS ON 05.12.2024, COMING ON FOR PRONOUNCEMENT THIS
DAY, THE COURT MADE THE FOLLOWING:-
CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CAV ORDER
Both these petitions, though by different petitioners in
different criminal cases, are tagged together on the score that they
project one and the same legal issue. In Writ Petition 7458 of 2024
the petitioner calls in question proceedings in C.C.No.29813 of 2023
registered for offences punishable under Section 125A of the
Representation of People Act, 1951 (hereinafter referred to as 'the
Act' for short). In Criminal Petition No.2756 of 2024 the petitioner
calls in question proceedings in C.C.No.7393 of 2024 again for
offence punishable under Section 125A of the Act. Therefore, the
common string in these petitions is the offence alleged - Section
125A of the Act.
2. Heard in W.P.No.7458 of 2024 Sri M.B. Nargund, learned
senior counsel appearing for the petitioner and Sri Prabhuling K.
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Navadgi, learned senior counsel appearing for the respondent and
in Criminal Petition No.2756 of 2024 Sri Venkatesh P. Dalwai,
learned counsel appearing for the petitioner and
Sri B. Rangaswamy, learned counsel appearing for the respondent.
3. Facts, in brief, germane are as follows:-
In W.P.No.7458 of 2024:
The petitioner is a sitting Member of the Legislative Assembly
from Bidar South constituency having contested the same on three
elections in 2013, 2018 and 2023. The issue is while filling up
nomination papers, the petitioner contesting from Bidar South
constituency had given his residential address as residing in No.350
of Chittawadi Village. On 29-03-2023 when the elections were
notified, the petitioner filed his nomination along with two affidavits
as a candidate from Bharatiya Janata Party ('BJP'). The Returning
Officer accepts the affidavit on 21-04-2023. The results were
declared and the petitioner comes out as a returned candidate of
BJP from Bidar South constituency. On 21-08-2023 a complaint is
registered by the respondent invoking Section 200 of the Cr.P.C.,
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alleging that the petitioner has filed a false affidavit that he is a
resident of Chitta Village of Bidar District, while he is not. The
concerned Court on 30-09-2023 takes cognizance of the offence
under Section 125A of the Act and posts the matter for recording of
sworn statement. The sworn statement comes to be recorded on
24-11-2023 and summons were issued to the accused. The
petitioner/accused, on receipt of summons, is at the doors of this
Court in the present petition.
In Crl.P.No.2756 of 2024:
The petitioner contested the State Assembly Elections in the
year 2023 for the Mahadevapura (SC) Constituency-174. The
petitioner wins the election and comes out as a returned candidate.
The respondent loses the election to the petitioner and then
registers a crime invoking Section 200 of the Cr.P.C., for offence
punishable under Section 125A of the Act. The allegation in the
complaint is concealment of a property owned by a firm in which
the petitioner was a partner and dependents column being left
blank in the nomination papers. The concerned Court takes
cognizance of the offence on 13-02-2024 and issues summons on
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05-03-2024 to the petitioner. Issuance of summons is what has
driven the petitioner to this Court in the subject petition.
4. Learned senior counsel Sri M.B. Nargund appearing for the
petitioner in the writ petition would project a threshold bar of
maintenance of the complaint itself. It is his contention that if the
complaint has to be registered for filing false affidavit, a private
person cannot do so. It is the Election Commission alone which has
a right to file a complaint for offence under Section 125A of the Act.
He would seek to place reliance upon several judgments and also
literature from Anthropological book on election laws of India
penned by V.S. Rama Devi, the consideration of which would
happen in the course of the order qua its relevance. The learned
counsel would also submit on merits of the matter that the
petitioner is a resident of Chitta village itself and take this Court
through the voter identity for the last three elections to buttress his
submission. In all he would seek quashment of the proceedings
before the concerned Court.
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5. The learned counsel Sri Venkatesh P Dalwai appearing for
the petitioner in the criminal petition would toe lines of the learned
senior counsel for the petitioner in the companion petition. Insofar
as merit of the matter is concerned, the learned counsel would
contend that the affidavit was not false. The children of the
petitioner are not dependent; they are income tax assessees and
are having their own business. Therefore, the dependents column is
left as nil. Insofar as non-mentioning of the firm, the learned
counsel would submit that the firm is a body corporate and it is not
a proprietorship concern of the petitioner to make a mention of it in
the assets and liabilities statement. In all he would seek quashment
of the crime.
6. Per contra, learned senior counsel Sri Prabhuling K.Navadgi
appearing for the respondent in the writ petition would vehemently
contend that filing of false affidavit would touch upon deceit of the
public by people's representative. Purity in contest of elections is
the most necessary concomitant of free and fair elections. The
petitioner is admittedly not a resident of Chitta village but is a
resident of Bidar. He has contested elections from Chittapur. He
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shows himself to be a resident of Chittapur. He has played fraud on
the people. Therefore, trial must ensue. Insofar as the contention
of maintainability of the complaint by a private person, the learned
senior counsel would seek to place reliance upon several
judgments, all of which would bear consideration qua their
relevance. He would contend whether the petitioner is a resident of
Chitta village or otherwise; whether the petitioner has declared all
the assets or his children were income tax assessees is all a matter
of trial, in which the petitioner has to come out clean. They are in
the realm of seriously disputed questions of fact. If this Court would
hold the complaint to be maintainable by a private party and not
the Election Commission for the aforesaid offence, the rest would
become a matter of evidence. Therefore, the only issue is with
regard to maintainability of the complaint by a private person for
offence punishable under Section 125A of the Act. The learned
counsel appearing for the respondent in the criminal petition would
adopt in toto the submissions of the learned senior counsel in the
companion petition.
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7. I have given my anxious consideration to the submissions
made by the respective learned senior counsels and other learned
counsels and have perused the material on record.
8. The afore-narrated facts are a matter of record. The
threshold bar in the case at hand, as projected by the learned
counsel for the petitioner is, maintainability of the complaint before
the concerned Court by a private individual. It is only if this Court
would hold that it is maintainable, it would consider merit of the
matter. Therefore, I deem it appropriate to consider the contention
of threshold bar at the first instance. Section 125A of the Act reads
as follows:
"125-A. 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 33-A; 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 33-A, as the case may be,
shall, notwithstanding anything contained in any other law
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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."
Section 125A comes into the statute book by Act 72 of 2002 with
effect from 24-08-2002. It punishes a candidate who himself or
through his proposer furnishes false information and gives such
information which he knows or reasons to believe is false and
conceals any information. The allegation against these petitioners is
furnishing of false information while filing the affidavits as
candidates in the 2023 elections to the Karnataka Legislative
Assembly. The facts and allegations may be manifold. Who can
register the complaint is what is necessary to be noticed.
9. The offence gets triggered in a nomination filed before the
Returning Officer for the purpose of contesting the elections.
Section 125 of the Act, as it stood then, had a clause of making
false declaration. Section 125A comes in 2002 as observed
hereinabove. Therefore, certain literature about it in the book 'How
India Votes' would become germane to be noticed. It reads as
follows:
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"31. Making false declaration. - If any person
makes in connection with:
(a) The preparation, revision or correction of an electoral
roll, or
(b) The inclusion or exclusion of any entry in or from an
electoral roll,
A statement or declaration in writing which is false and which
he either knows or believes to be false or does not believe to
be true, he shall be punishable with imprisonment for a term
which may extend to one year or with fine, or with both.
Comments. - The offence under S.31 is non-cognisable. For
detailed discussion on the provisions of this section, see
'False Declarations in Connection with Electoral Rolls' in ch.7.
32. Breach of official duty in connection with
preparation, etc, of electoral rolls, - (1) If any electoral
registration officer, assistant electoral registration officer or
other person required by or under this Act to perform any
official duty in connection with the preparation, revision or
correction of electoral roll or the inclusion or exclusion of any
entry in or from the roll, is without reasonable cause, guilty
of any act or omission in breach of such official duty, he shall
be punishable with imprisonment for a term which shall not
be less than three months but may extend to two years and
with fine.
(2) No suit or other legal proceeding shall lie against
any such officer or other person for damages in respect of
any such act or omission as aforesaid.
(3) No court shall take cognisance of any offence
punishable under sub-section (1) unless there is a complaint
made by order of, or under authority from, the Election
Commission or the Chief Electoral Officer of the State
concerned.
... .... ...
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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.
Comments. - The Election Commission has clarified to the
returning officer that the nomination paper of a candidate
shall not be rejected solely on the ground that the candidate
has given any wrong information or suppressed any material
information in his affidavit. If any such defect or discrepancy
is brought to the notice of the returning officer, he shall file a
complaint before the competent magistrate under S.195
CrPC for violation of the present S.125A and S.177 IPC."
It is elucidated in the comment section that the Election
Commission has clarified to the Returning Officer that the
nomination paper shall not be rejected solely on the ground that
the candidate has given any wrong information or suppressed any
material information in his affidavit. If any such defect or
discrepancy is brought to the notice of the Returning Officer, he
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shall file a complaint under the provisions of law for the offence
punishable under Section 125A or Section 177 of the IPC. The
learned senior counsel for the respondents has relied on several
judgments to contend that this Court has considered and held that
Section 125A of the Act can be complained of by any private
individual.
10. A coordinate Bench of this Court in the case of
RAGHUNATH VISHWANATH DESHPANDE v. STATE OF
KARNATAKA1, has held as follows:
"Petitioner has filed this petition under Articles 226
and 227 of the Constitution of India r/w Section 482 of
Cr.P.C., seeking following reliefs:--
a. Issue writ in the nature of Certiorari or any other
appropriate writ, order or direction quashing the
complaint dated 20.01.2014 in bearing PCR No.
A/2014 on the file of the Hon'ble Principal Judicial
Magistrate Fast Track Court, Haliyal filed by
Respondent No. 2 under Section 200 of the Code of
Criminal Procedure for offences punishable under
Sections 171(g), 177, 181, 182, 199, 420, 465, 467
and 468 of the Penal Code, 1860 (Annexxure - A).
b. Issue writ in the nature of Certiorari or any other
appropriate writ, order or direction quashing of order
dated 20.01.2014 passed by the Hon'ble Principal
JMFC, Haliyal in PCR No. 4/2014, inter-alia directing
investigation under Section 156(3) of Criminal
1
2015 SCC OnLine Kar 9709
15
Procedure Code, 1973 and referring the complaint for
investigation and report to CPI, Haliyal (Annexure - B).
c. Issue writ in the nature of Certiorari or any other
appropriate writ, order or direction quashing order
dated 18.08.2014 passed by the Hon'ble Principle Civil
Judge JMFC, Haliyal in PCR No. 4/2014 directing the
1st Respondent to investigate the matter and submit
the report by 19.09.2014 (Annexure - C).
2. The respondent No. 2-Jayanth MukundhTenaiker
claiming to be the social worker, filed a complaint under
Section 200 of Cr.P.C. against the petitioner in PCR No.
4/2014 on the file of Principal JMFQ Haliyal on 20.01.2014
for the offences punishable under Sections 171(g), 177, 181,
182, 189, 420, 467 and 468 of IPC. The sum and substance
of the allegations made in the complaint are that the
petitioner made false declaration in the affidavit filed in Form
No. 26 as provided under Section 33(A) of the
Representation of People Act, 1951, while submitting his
nomination papers to the Returning Officer, while contesting
election for the Karnataka Legislative Assembly from Haliyal
Assembly Constituency in Uttara Kannada District, for the
elections held in the year 2004, 2008 and 2013.
3. The learned Magistrate received the complaint on
20.01.2014 presented by the complainant and passed the
following order:
"Complainant present. Refer the matter to
CPI, Haliyal under Section 156(3) of Criminal
Procedure Code for investigation and report.
Call on 28.02.2014."
... ... ...
6. The learned counsel appearing for the
petitioner has vehemently submitted before me that
respondent No. 2 who is claiming to be the social
worker has no locus standi to file the complaint for the
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offences punishable under Sections 171(g), 181, 182
and 199 of IPC having regard to the nature of
allegations made in the complaint. It is for the
Returning Officer to file the complaint, if he satisfied
that a false affidavit in Form No. 26 is filed while
submitting the nomination papers. The learned
counsel submitted that there is no material in the
complaint to speak about the ingredients of offences
under Sections 420, 465, 467 and 468 of IPC in as
much as the complaint for the offences under Sections
420, 465, 467, and 468 is not maintainable for want of
sanction under Section 197 of Cr.P.C. It is further
submitted that the learned Magistrate Without
applying the mind to the allegations made in the
complaint mechanically referred the complaint under
Section 156(3) of Cr.P.C. like a post office. Further, it
is submitted that the complaint is not accompanied by
an affidavit of the complaint which is mandatory so
also the complaint is not accompanied by a sanction
order under Section 197 of Cr.P.C. which is a pre-
condition. Under such circumstances, the continuation
of the proceedings in furtherance of the said complaint
would amount to abuse of process of law and hence
the learned counsel sought to quash the entire
proceedings. The learned counsel placed reliance on
the following decisions to buttresses his arguments:--
1. (2006) 4 SCC 584 in the matter of Sankaran
Moitra v. Sadhna Das;
2. (2008) 5 SCC 668 in the matter of Maksud
Saiyed v. State of Gujarat;
3. 1999 Cri LJ 3909 (1) in the matter
of GuruduthPrabhu v. Krishna Bhat;
4. (2013) 10 SCC 705 in the matter of Anil
Kumar v. M.K. Aiyappa.
5. (2015) 6 SCC 287 in the matter of Priyanka
Srivastava v. State of Uttar Pradish.
7. On the other hand, respondent No. 2 in person
has argued that in view of the notification issued by
the Election Commission of India, not only the
Returning Officer but even an individual person can
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also file a complaint, if a false information is furnished
on oath by a candidate in Form No. 26 while
submitting nomination papers. In support of his
submission, respondent No. 2 has placed on record a
letter of Election Commission bearing No. 3/ER/2004-
JS-II dated 02.06.2004 addressed to the Chief
Electoral Officers of all the States and Union
Territories. So far as other the offences under Sections
420, 465, 467, 468 of IPC are concerned, respondent
No. 2 submitted that prior sanction as required under
Section 197 of Cr.P.C. is not necessary at the time of
filing of the complaint. He placed reliance on decision
of the Supreme Court reported in 2014 STPL (Web)
454 SC in a case of Chandan Kumar Basu v. State of
Bihar to substantiate his submission and sought for
dismissal of the writ petition as bereft of merits.
8. The sum and substance of the allegations
made in the complaint is that he gave a false
declaration as to his movable and immovable
properties and assets to the Returning Officer in all
the elections contested by him for the years 2004,
2008, 2013 and thereby he committed an offence
punishable under Section 171(g), 177, 181, 182, 189,
420, 467 and 468 of IPC. The question is whether the
complainant being a private person has locus standi to
present a complaint. To answer the question it is
necessary to go through Section 195 of Cr.P.C, which
reads as under:
"195. Prosecution for contempt of lawful
authority of public servants, for offences against
public justice and for offences relating to documents
given in evidence-(1) No Court shall take cognizance
-
(a) i) of any offence punishable under
sections 172 to 188 (both inclusive) of
the Penal Code, 1860 (45 of 1860), or
ii) of any abetment of attempt to commit,
such offence, or
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iii) of any criminal conspiracy to commit
such offence, except on the complaint
in writing of the public servant
concerned or of some other public
servant to whom he is administratively
subordinate;
(b) i) of any offence punishable under any of
the following sections of the Penal
Code, 1860 (45 of 1860), namely,
sections 193 to 196 (both inclusive),
199, 200, 205 to 211 (both inclusive)
and 228, when such offence is alleged
to have been committed in, or in
relation to, any proceeding in any
Court, or
ii) of any offence described in section
463, or punishable under section 471,
section 475 or section 476, of the said
Code, when such offence is alleged to
have been committed in respect of a
document produced or given in
evidence in a proceedings in any
Court, or
iii) of any criminal conspiracy to commit,
or attempt to commit, or the abetment
of, any offence specified in sub-clause
(i) or sub-clause (ii), (except on the
complaint in writing of that Court or by
such officer of the Court as that Court
may authorise in writing in this behalf
or of some other Court to which that
Court is subordinate).
9. Thus from reading Section 195 of Cr.P.C. it is
abundantly clear that no Court shall take cognizance of
any offence punishable under Sections 172 to 188
(both inclusive) of Penal Code, 1860 except on the
complaint in writing to that Court or by such officer of
the Court as that Court may authorise in writing in this
behalf, or of some other Court to which that Court is
subordinate. Needless to say that the provisions of
Section 195 of the Code are mandatory and non
compliance of it would vitiate the prosecution and all
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other consequential orders. In the case on hand, the
complaint is not filed by the Court or Officer of the
Court or by a public servant i.e., the Returning Officer.
Therefore, as rightly submitted by the learned counsel
for the petitioner that the complainant has no locus-
standi to file the complaint against the petitioner for
the offences punishable under Sections 172, 181, 182,
199 of IPC. The complaint if at all ought to have been
filed by a Returning Officer, if he was satisfied that a
false information has been furnished by the petitioner
and initiate action to prosecute the petitioner by filing
the complaint The Letter No. 4/2014/SDR-I dated
26.04.2014 written by the Election Commission of
India to the Chief Electoral Officers of all States and
Union Territories has been produced by respondent
No. 2 to show that a private individual has been
permitted to file a complaint in the event a false
information is furnished by a candidate as to his assets
at the time of submitting nomination papers while
contesting election. Paras 3 and 4 of the letter reads as
under:
"3. Now that the affidavit is in Form 26 under
section 33A. of the R.P. Act, 1951, making false
declaration/concealing of information in the affidavit
would he covered under Section 125A of the Act
Under Section 125A, there is no stipulation that
complaints under that section have to be made by
the public servant concerned (in this case the RTO).
Therefore, it would be open to any aggrieved person
to move petition before the appropriate Court of
competent jurisdiction with the petition for action
under Section 125A. in the case of any fade
declaration or concealing of information in the
affidavit in Form 26.
4. Therefore, it will be no longer necessary
under the Cr.P.C. for the Returning Officer to move
the competent court in relation to any complaint
about a false affidavit The complainant himself can
be the complainant before the court as well."
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10. By reading contents of paras 3 and 4 of the
said letter, it is evident that if an offence is
conmmitted under Section 125A of the Representation
of People's Act, 1951, it would be open to any
aggrieved person to move petition before the
appropriate Court of competent jurisdiction for action
in case of any false declaration or concealing of
information in the affidavit in Form No. 26. In that
case, it will be no longer necessary to proceed under
Cr.P.C. for the Returning Officer to move the
competent Court in a relation to any complaint about
false affidavit. The complainant himself can be the
complainant before the Court as well. Under Section
125A, there is no stipulation that complaint under that
Section have to be made by the public servant
concerned i.e., by the Returning Officer in this case.
But in the case on hand, the complainant has invoked
the penal provisions of Penal Code, 1860. In that case,
Section 195 of Cr.P.C. will come into play and as such
the complainant has no locus standi to file the
complaint so as to prosecute the petitioner. Therefore,
the complaint and the further proceedings arising out
of the complaint are liable to be quashed.
11. The other ground on which the petitioner
seeks to quash the complaint is that the complaint is
not supported by an affidavit of the complainant. In
this regard, the decision of the Supreme Court relied
upon by the petitioner reported in (2015) 6 SCC 287 in
the matter of Priyanka Srivastava v. State of Uttar
Pradesh is aptly applicable. In head note A the
Supreme Court held as under:
"A. Criminal Procedure Code, 1973 - S.
156(3) and Ss.340 to 344 - Application under S.
156(3) CrPC seeking direction for registration of FIR.
- Held, must be supported by an affidavit - Purpose
of filing of such affidavit, stated is to prevent abuse
of process, which is becoming more common
nowadays."
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12. In view of the above decision of the Supreme
Court, the complaint filed by the complainant ought to have
been returned by the Magistrate.
13. Yet another ground on which the petitioner seeks
to quash the complaint is that the learned Magistrate without
application of the mind about the disclosure of offences as
alleged in the complaint referred the complaint under Section
156(3) of Cr.P.C. to CPI, Haliyal. It is suffice to say that the
order of the Magistrate directing investigation under Section
156(3) of Cr.P.C. without application of mind to allegations
made in the complaint is without jurisdiction. In (2008) 5
SCC 668 in the matter of MaksudSaiyed v. State of Gujarat,
the Supreme Court observed as under:
'Where a jurisdiction is exercised on a
complaint petition filed in terms of Section 156(3) or
Section 200 of Cr.P.C. the Magistrate is required to
apply his mind. Summoning of an accused in a
criminal case is a serious matter. Criminal Law
cannot be set into motion as a matter of course. The
Magistrate has to carefully scrutinize the evidence
brought on record and may even himself put
questions to the complainant and his witnesses to
elicit answers to find out the truthfulness of the
allegations or otherwise and then examine if any
offence is prima-facie committed by any of the
accused"
14. The Division Bench of this Court in a decision
reported in 1999 Cri LJ 3909 (1) in the matter
of GuruduthPrubhu v. Krishna Bhat; held as under:
"if every complaint filed under Section 200,
Cr.P.C, is referred to the police under Section 156(3)
without application of mind about the disclosure of
an offence, there is every likelihood of unscrupulous
complainants in order to harass the alleged accused
named by them in their complaints making bald
allegations just to see that the alleged accused are
harassed by the police who have no other go except
to investigate as ordered by the Magistrate.
Therefore, it is mandatory for the Magistrate to apply
his mind to the allegations made in the complaint
and in only cases which disclose an offence, the
22
Magistrate gets jurisdiction to order an investigation
by the police if he does not take cognizance of the
offence. When the allegations made in the complaint
does not disclose cognizable offence, the Magistrate
has no jurisdiction to order police investigation under
sub-section (3). In the present case, the Magistrate
without applying his mind had directed an
investigation by the police. Such an order which is
passed without application of mind is clearly an order
without jurisdiction. Therefore, the order passed
directing the police to investigate under sub-section
(3) of Section 156, Cr.P.C., passed without
jurisdiction is liable to be quashed by High Court
either under Section 482, Cr.P.C, or under Article 26
of the Constitution of India."
15. Needless to say that no such exercise has been
made by the Magistrate and as such the complaint is liable to
be quashed for non-application of mind by the Magistrate to
refer the complaint under Section 156(3) of Cr.P.C.
16. The other ground on which the petitioner has
sought to quash the complaint is that the petitioner is a
Cabinet Minister, the Government of Karnataka and
therefore, he is a public servant. The complainant has
alleged that he committed offences under Sections 420, 465,
467 and 468 of IPC. In that case, the complaint should have
accompanied by an order of sanction as required under
Section 197 of Cr.P.C. In support of the same the petitioner
has relied upon the decision of the Supreme Court reported
in (2006) 4 SCC 584 in the matter of Sankaran
Moitra v. Sadhna Das, wherein in head Note A the supreme
Coart has stated as under:
"A. Criminal Procedure Code, 1973 - S. 197 -
Requirement under, of obtaining sanction to
prosecute a public servant-Necessity of-Stage for
raising question as to applicability of S. 197 - Held
(per majority), prosecution hit by provision under S.
197 cannot be launched without the contemplated
sanction - It is a condition precedent though the
question as to applicability of S. 197 may arise not
necessarily at the inception but even at a subsequent
stage - Request to postpone the decision on the said
question in the instant case, held, not acceptable -
23
Complaint that deceased, a supporter of a political
party, was beaten to death by police personnel at
the instance of appellant police officer near a polling
booth on election day - appellant was on duty to
prevent any breach of law and maintain order on
that day - He had reached the spot on receiving
information regarding some disturbances at the
polling booth - Held, appellant committed the act in
question during the course of performance of his
duty - Sanction under S. 197(1) was necessary for
his prosecution - High Court's judgment taking
contrary view set aside - High Court's reasoning that
killing of a person by use of excessive force could
never be performance of duty, not proper - Its
further reasoning that if High Court were to interfere
on the ground of want of sanction, people will lose
faith in the judicial process, is also not acceptable -
Per C.K. Thakker, j. (dissenting), on applicability of
S.197 it is the duty of the Court to apply its mind to
the fact situation before it - In the present case the
appellant acted illegally, unlawfully and high-
handedly and his act could not be said to be an act in
discharge of official duty - Therefore, S. 197 not
attracted."
17. In (2013) 10 SCC 705 in the case of Anil
Kumar v. M.K. Aiyappa, in head note A the Supreme Court
held as under:
"A. Public Accountability, Vigilance and
Prevention of Corruption - Prevention of Corruption
Act, 1988 - Ss. 19(1) and (3) - Sanction under S
19(1) -Held, is a precondition for ordering
investigation against public servant under S. 156(3)
CrPC even at pre-cognizance stage - Non-effect of
absence of sanction in some circumstances under S.
19(3) - Held, does not mean that requirement of
sanction is not mandatory - Private complaint
against public servant under S.200 CrPC - Reference
of complaint by Magistrate under S. 156(3) CrPC -
for investigation by police - No sanction order under
S.19(1). PC Act. 1988 - Reference, not valid -
Investigation under S 156(3) CrPC cannot be ordered
without previous sanction under S. 19(1), PC Act,
1988 - Criminal Procedure Code, 1973, Ss. 197, 200,
202, 156(3) and 482."
24
18. Thus, from the above decisions of the
Supreme Court, it is clear that a sanction under
Section 197 of Cr.P.C. is a condition precedent to file a
complaint for the aforesaid offences. In the decision
relied upon by respondent No. 2 reported in 2014 STPL
(Web) 454 SC in a case of Chandan Kumar
Basu v. State of Bihar, it has been held that the
question relating to the need of sanction of under
Section 197 of Cr.P.C. is not necessarily to be
considered as soon as the complaint is lodged and on
the allegations contained therein. This question may
arise at any stage of the proceeding. The question
whether sanction is necessary or not may have to be
determined from stage to stage."
(Emphasis supplied)
The issue before the coordinate Bench was that of offence
punishable under Section 177 of the IPC inter alia the offences of
forgery and the crux of the complaint was that the petitioner
therein Sri R. V. Deshpande had made a false declaration in the
affidavit while contesting the election for the Legislative Assembly
from Haliyal Assembly Constituency for the elections held in the
years 2004, 2008 and 2013. The coordinate Bench has held that
any member of the public can file a private complaint.
25
11. Another coordinate Bench in the case of
SRI H.K. MUTHAPPA v. THE STATE ELECTION COMMISSION2,
has held as follows:
"Petitioner and the third respondent were
candidates for Councilor in Bruhat Bengaluru
Manahaga Palike (for short hereinafter referred to as
'BBMP') and have contested from Ward No.176. The
third respondent got elected. Petitioner noticed that
the third respondent has suppressed the fact while
submitting his nomination paper regarding the
pendency of criminal case against him by Tamil Nadu
Police in Crime No.505 of 2013 dated 8th September
2013 for offence punishable under Sections 120(b),
341, 357, 365, 294(b) and 506(ii) of the Indian Penal
Code. Since he noticed the present incident after the
statutory period to file election petition, he filed this
petition seeking for a direction to respondents No.1
and 2 to initiate criminal proceedings against the third
respondent for having suppressed the fact.
2. The learned counsel appearing for the
respondents No.1 and 2 submits that if at all the
petitioner is aggrieved, he is at liberty to file criminal
petition under Section 125A of the Representation of
Peoples Act, 1951 and an opportunity would be given
to the third respondent to contest the matter. By
referring letter bearing No.4/2014/SDR.y02.I dated
26th April 2014 addressed by the Principal Secretary,
Election Commission of India to the Chief Electoral
Officers of all the States and Union Territories, the
learned counsel submits that in view of the said
communication, it is reiterated that the aggrieved
party has to file petition under Section 125A of the
Representation of Peoples Act. Except the provision
referred above, there are no other provisions to
initiate criminal case by the first and second
respondents. He further submits that the Returning
2
W.P.No.3336 of 2016 decided on 13th April 2016
26
Officer had no power to reject the nomination paper
and has to accept and under the circumstance, the
respondents No.1 and 2 have not
committed any irregularity.
3. The learned counsel appearing for the third
respondent placing reliance on the judgment of this Court in
the case of P.RAGHU v. STATE OF KARNATAKA reported in
2009 SCC KAR.135; and in the case of KISAN SHANKAR
KATHORE V. ARUN DATTATRAY SAWANT AND OTHERS
reported in AIR 2014 SC 2069 submits that the aggrieved
party can institute case under Section 125A of the
Representation of Peoples Act but the election cannot be
questioned in Criminal case. The election petition for
adjudication before the District Court having jurisdiction, has
to be filed within thirty days from the date of publication of
result. In the instant case, that statutory period is already
over and since the petitioner has not instituted election
petition, the election of the third respondent cannot be
questioned by the petitioner before this Court.
4. Heard the learned counsel for the parties. As
per the communication dated 26th April 2014 from the
Election Commission of India, it is the aggrieved
person to move petition under Section 125A of the
Representation of Peoples Act before the appropriate
Court having competent jurisdiction or to institute
Election dispute as provided under Section 35 of the
Karnataka Municipalities Act, before the Election
Tribunal. These are the two provisions available to the
aggrieved party. Now-a-days this Court is coming
across criminal cases where the persons who have
committed serious offences are in the contest for
elections. It is a dangerous sign. But, it may not be
possible for this Court to interfere unless petition is
filed under relevant provision of law. Whoever files
nomination for contesting in elections has to disclose
all relevant and material facts. If any suppression or
hiding any material is found, it is for the Election
Commission to consider the same and if it is noticed by
the aggrieved party that materials have been
suppressed, it is for him to bring before the election
commission while filing nomination. But in cases of
27
this nature where suppression of material facts is
unearthed after completion of thirty days and the
aggrieved party cannot file election petition, for that
point there is no relevant provision available under
Representation of Peoples Act or the Municipal
Corporations Act. In that view of the matter, petition
stands disposed of. In the facts and circumstances of
the matter, Central Crime Branch, Bangalore is
directed to register FIR against the third respondent
and file Charge sheet after thorough investigation. The
charge sheet shall be filed within ninety days from the
date of receipt of this order.
Registry is directed to mark a copy of this Order
to the Central Crime Branch, Bangalore for further
compliance."
(Emphasis supplied)
The coordinate Bench holds that it is not necessary that the Election
Commission alone should file a complaint, though it was a matter
concerning municipal elections. This was carried in Writ Appeal
before the Division Bench in Writ Appeal No.1165 of 2016. The
Division Bench by its judgment dated 27-10-2016 though sets the
order aside, it was for the reason that the Court had directed filing
of the charge sheet. The principle laid down was not altered.
Therefore, the issue now would be who would be competent to
register the complaint.
28
12. The offence is admittedly non-cognizable. The concept of
any person setting the criminal law into motion of a cognizable
offence would not become applicable to offences under Section
125A of the Act or even Sections 176 and 177 of the IPC. For the
alleged offences, the bar under Section 195(1) of the Cr.P.C.
springs into operation. Section 195 of the Cr.P.C. reads as follows:
"195. Prosecution for contempt of lawful
authority of public servants, for offences against
public justice and for offences relating to documents
given in evidence.--(1) No Court shall take cognizance--
(a) (i) of any offence punishable under
Sections 172 to 188 (both inclusive) of
the Indian Penal Code (45 of 1860), or
(ii) of any abetment of, or attempt to commit, such
offence, or
(iii) of any criminal conspiracy to commit such
offence,
except on the complaint in writing of the public servant
concerned or of some other public servant to whom he is
administratively subordinate;
(b) (i) of any offence punishable under any of the
following sections of the Indian Penal Code (45
of 1860), namely, Sections 193 to 196 (both
inclusive), 199, 200, 205 to 211 (both inclusive)
and 228, when such offence is alleged to have
been committed in, or in relation to, any
proceeding in any Court, or
(ii) of any offence described in Section 463, or
punishable under Section 471, Section 475 or
29
Section 476, of the said Code, when such
offence is alleged to have been committed in
respect of a document produced or given in
evidence in a proceeding in any Court, or
(iii) of any criminal conspiracy to commit, or
attempt to commit, or the abetment of, any
offence specified in sub-clause (i) or sub-clause
(ii),
except on the complaint in writing of that Court or by such
officer of the Court as that Court may authorise in writing in
this behalf], or of some other Court to which that Court is
subordinate.
(2) Where a complaint has been made by a public
servant under clause (a) of sub-section (1) any authority to
which he is administratively subordinate may order the
withdrawal of the complaint and send a copy of such order to
the Court; and upon its receipt by the Court, no further
proceedings shall be taken on the complaint:
Provided that no such withdrawal shall be ordered if
the trial in the Court of first instance has been concluded.
(3) In clause (b) of sub-section (1), the term "Court"
means a Civil, Revenue or Criminal Court, and includes a
tribunal constituted by or under a Central, Provincial or State
Act, if declared by that Act to be a Court for the purposes of
this section.
(4) For the purposes of clause (b) of sub-section (1), a
Court shall be deemed to be subordinate to the Court to
which appeals ordinarily lie from the appealable decrees or
sentences of such former Court, or in the case of a Civil
Court from whose decrees no appeal ordinarily lies, to the
principal Court having ordinary original civil jurisdiction
within whose local jurisdiction such Civil Court is situate:
Provided that--
(a) where appeals lie to more than one Court, the
Appellate Court of inferior jurisdiction shall be the
Court to which such Court shall be deemed to be
subordinate;
30
(b) where appeals lie to a Civil and also to a Revenue
Court, such Court shall be deemed to be subordinate
to the Civil or Revenue Court according to the nature
of the case or proceeding in connection with which the
offence is alleged to have been committed."
Section 195(1) mandates that no Court shall take cognizance of the
offence except upon a complaint by the public servant. This is a
legal bar in terms of law. Section 125A of the Act also should pass
muster the rigours of Section 195(1) of the Cr.P.C. Therefore, the
offence has to be complained of only by the Election Commission
particularly, of the offence under Section 125A of the Act. The
judgment of the coordinate Bench quoted supra was considering the
offence under Sections 176 and 177 inter alia with several offences
of the IPC. Therefore, they were cognizable offences as it was
forgery and cheating included in Sections 176 and 177 of the IPC.
In the case at hand, it is the complaint under Section 125A of the
Act. Therefore, the said judgment of the coordinate Bench in the
case of Sri R.V. Deshpande is not applicable to the case at hand.
13. In the circumstances, I deem it appropriate to hold that it
was only the Election Commission which has a right to register the
complaint qua the offence under Section 125A of the Act. A right
31
given to the voter is only to file an election petition, and not to
register a private complaint of crime, of the kind considered supra,
which is the duty of the Election Commission, if it wants to do so.
14. For the aforesaid reasons, the following:
ORDER
(i) Writ Petition No.7458 of 2024 & Criminal Petition
No.2756 of 2024 are allowed.
(ii) Proceedings in C.C. No.29813 of 2023 and C.C.No.
7393 of 2024 pending before the XLII Additional Chief
Metropolitan Magistrate (Special Court for trial of cases
against sitting as well as former MPs/MLAs, triable by
Magistrate in the State of Karnataka), Bengaluru stand
quashed.
(iii) It is open to the complainants to avail of any other
available remedy in law, if so advised.
32
Consequently, I.A.No.1 of 2024 filed in W.P.No.7458 of 2024
stands disposed.
Sd/-
(M. NAGAPRASANNA)
JUDGE
bkp
CT:MJ