Dr. Nishikant Dubey vs The State Of Jharkhand Through The ...
2022 Latest Caselaw 1267 Jhar

                                                    1                  W.P. (Cr.) No. 299 of 2020


                     IN THE HIGH COURT OF JHARKHAND AT RANCHI
                               W.P. (Cr.) No. 299 of 2020
                  Dr. Nishikant Dubey, aged about 51 years, S/o Shri Radhey Shyam
                  Dubey, R/o 18, G.R.G. Road, P.O. & P.S. GRG Road, New Delhi-110001
                                                                      ... Petitioner
                                          -Versus-
             1.   The State of Jharkhand through the Director General of Police, Nepal
                  House, P.O. & P.S. Doranda, Ranchi-834002
             2.   The Election Commission of India through the Chief Election
                  Commissioner, Nirvachan Sadan, Ashoka Road, P.O. & P.S. Central
                  Secretariat, Dist.- New Delhi-110001
             3.   The Superintendent of Police, officiating from his office at Office of
                  Superintendent of Police, P.O. & P.S. Deoghar Town, Deoghar-814112
             4.   The Inspector of Police, P.O. & P.S. Town Deoghar-814112
             5.   Shri Vishnu Kant Jha, S/o Yadunandan Jha, R/o Bampas Town,
                  Deoghar, P.O. & P.S. Town Deoghar, Dist.- Deoghar
                                                                      ... Respondents
                                            -----

CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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For the Petitioner : Mr. R.S. Mazumdar, Sr. Advocate Mr. Prashant Pallav, Advocate For the State : Mr. Ashutosh Anand, A.A.G.-III For Respondent No.2 : Dr. Ashok Kumar Singh, Advocate Mr. Akashdeep, Advocate For Respondent No.5 : Mr. Jitendra Shankar Singh, Advocate

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14/30.03.2022. Heard Mr. R.S. Mazumdar, learned Senior counsel assisted by

Mr. Prashant Pallav, learned counsel for the petitioner, Mr. Ashutosh Anand,

learned A.A.G.-III for the respondent-State, Dr. Ashok Kumar Singh assisted

by Mr. Akashdeep, learned counsel for respondent no.2 and Mr. Jitendra

Shankar Singh, learned counsel for respondent no.5.

2. This petition has been taken through Video Conferencing in view of

the guidelines of the High Court taking into account the situation arising due

to COVID-19 pandemic. None of the parties have complained about any

technical snag of audio-video and with their consent this matter has been

heard.

3. Initially in this case FIR bearing number Deoghar Town P.S. Case

No.427 of 2020, registered under Section 468, 471 and 420 of the Indian

Penal Code was under challenge and the petitioner was protected by way of

interim order dated 20.01.2021. The charge-sheet dated 24.07.2021 has

been submitted and cognizance has been taken against the petitioner vide

order dated 26.07.2021, which were challenged by way of filing I.A.

No.4223 of 2021. The said I.A. was allowed on contest vide order dated

09.09.2021 and the petitioner was directed to file amended writ petition and

the State was set at liberty to file additional affidavit to the amended writ

petition. Thus, vide order dated 09.09.2021, the charge-sheet dated

24.07.2021 as well as the cognizance order dated 26.07.2021 are also

allowed to challenge in this petition. The amended writ petition has been

filed by the petitioner and reply to the same has also been filed by the State

by way of filing additional affidavit.

4. Respondent no.5 has filed the FIR alleging therein that the Twitter

handle of the incumbent political party, Jharkhand Mukti Morcha

(@jmmjharkhand) posted a message about the petitioner, wherein, certain

comments were made about the educational qualification of the petitioner

and reference was made to a letter from the Faculty of Management

Studies, New Delhi, stating that the petitioner was never admitted nor

passed from the college. It has been further alleged that the petitioner in

the year 2016 in his affidavit bearing number FMS/4012 dated 5 th January,

2016 has stated that his degree of MBA is correct. Further in his public

rallies, the petitioner often refers to his high educational qualification and

his contact in several companies through which he can secure jobs for the

public. On the basis of the above mentioned tweet, respondent no.5 has

alleged that the degree of the petitioner is false and he has tried to mislead

the public. On the basis of this complaint, an FIR bearing number Deoghar

Town P.S. Case No.427 of 2020 was instituted by respondent nos. 1, 3 and 4

under Section 468, 471 and 420 of the Indian Penal Code.

5. Mr. Mazumdar, learned Senior counsel appearing for the petitioner

submits that the petitioner has been elected as Member of Parliament of

17th Lok Sabha representing the constituents of Godda, Jharkhand in the

year 2019. The petitioner has also served as the Member of Parliament in

the 15th and 16th Lok Sabha. By way of referring the contents of FIR, he

submits that there is no disclosure of the ingredients, so far as Sections 417

and 420 of the Indian Penal Code are concerned and in view of that the

charge-sheet has been submitted by the police stating that so far as

Sections 177 and 181 of the Indian Penal Code and Section 125A of the

Representation of the People Act, 1951 are concerned, these sections are

non-cognizable and on complaint only this can be filed and accordingly the

case was referred to the Deputy Commissioner, Godda for taking action. He

further submits that so far as Sections 417 and 420 of the Indian Penal

Code are concerned, charge-sheet has been submitted and the investigating

agency has recorded that the investigation is going on. He also submits that

vide order dated 26.07.2021, the learned court has taken cognizance under

Section 171G of the Indian Penal Code and under Section 125A of the

Representation of the People Act, 1951. He further submits that in light of

Sub-section (2) of Section 155 Cr.P.C., the police is not authorized to

investigate a non-cognizable case without the order of a Magistrate, who is

having power to try such case or commit the case for trial. He also submits

that the cognizance order is bad in law as the police has investigated the

case and cognizance has been taken against the petitioner. To buttress this

argument, he relied upon the judgment rendered by the Hon'ble Supreme

Court in the case of Keshav Lal Thakur v. State of Bihar, reported in

(1996) 11 SCC 557.

6. Paragraph 3 of the said judgment is quoted herein below:

"3. We need not go into the question whether in the facts of the instant case the above view of the High Court is proper or not for the impugned proceeding has got to be quashed as neither the police was entitled to investigate into the offence in question nor the Chief Judicial Magistrate to take cognizance upon the report submitted on completion of such investigation. On the own showing of the police, the offence under Section 31 of the Act is non-cognizable and therefore the police could not have registered a case for such an offence under Section 154 CrPC. Of course, the police is entitled to investigate into a non-cognizable offence pursuant to an order of a competent Magistrate under Section 155(2) CrPC but, admittedly, no such order was passed in the instant case. That necessarily means, that neither the police could investigate into the offence in question nor submit a report on which the question of taking cognizance could have arisen. While on this point, it may be mentioned that in view of the Explanation to Section 2(d) CrPC, which defines 'complaint', the police is entitled to submit, after investigation, a report relating to a non-cognizable offence in which case such a report is to be treated as a 'complaint' of the police officer concerned, but that explanation will not be available to the prosecution here as that relates to a case where the police initiates investigation into a cognizable offence -- unlike the present one -- but ultimately finds that only a non-cognizable offence has been made out."

7. By way of referring this judgment, Mr. Mazumdar, learned Senior

counsel appearing for the petitioner submits that the case of the petitioner

is fully covered in light of the order of the Hon'ble Supreme Court as there is

no order of investigation by any competent court and in view of Section

155(2) Cr.P.C., the cognizance order is bad in law.

8. Mr. Mazumdar further submits that in the identical situation, the

Rajasthan High Court has interfered in the criminal case filed against one of

the people representative against whom there was allegation of concealing

the material fact while contesting the election of Sarpanch. He relied upon

the judgment rendered by the Rajasthan High Court in the case of

Narayan Lal v. State of Rajasthan & another , in S.B. Criminal Misc

(Pet.) No.1259/2016 which was allowed on 17.04.2017.

9. Paragraphs 2, 9, 10 and 11 of the said judgment are quoted herein

below:

"2. The impugned FIR has been lodged on the basis of a complaint filed by the complainant mainly with the allegations that the accused while contesting the election of Sarpanch, Gram Panchayat, Jaswantgarh, submitted certain documents alongwith an affidavit on 17.01.2015 before the Returning Officer, but while doing so, he concealed the material fact of his being father of the four children, as he disclosed that he has only two children. It is also stated in the FIR that the petitioner had two more children, namely, Mst.Senrita and Mst.Femina, who were born on 28.09.1998 and 20.12.2000 respectively. It was also stated in the FIR that the petitioner has concealed the factum of having more than two children only with an intention to make himself eligible to contest the election. It was therefore stated in the FIR that the petitioner is not eligible to contest the election of Sarpanch, being father of more than two children, and concealing the said fact tantamounts to committing an offence under the Indian Penal Code.

xxx xxx xxx

9. From bare reading of the impugned FIR, it is clear that there is no averment to the effect that the accused by using fraudulent means induces the complainant or any person so cheated to deliver some valuable security etc. Hence, the offence punishable under section 420 IPC cannot be said to be made out from allegations contained in the impugned FIR.

10. It is noticed that in the impugned FIR, there is no allegation to the effect that the petitioner has prepared a false document and used it as a genuine one. The main allegation in the impugned FIR against the accused is to the effect that he has furnished false declaration regarding his children in the nomination form and on the basis of which, he has contested the election though he was not qualified to do so. Furnishing false information before a public servant cannot be equated with the execution of a false document. If what is executed is not a false document, there is no forgery and if there is no forgery, then no offence under the provisions of sections 420 IPC is made out.

11. The Hon'ble Supreme Court in State of Haryana & Ors. vs. Bhajan Lal & Ors., 1992 SCC (Cri) 42 has held as under:

"102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this

Court in a series of decisions relating to the exercise of the extra-ordinary power under Article 226 or the inherent powers Under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. (1) Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima- facie constitute any offence or make out a case against the accused.

(2) Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers Under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non- cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated Under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."

10. Mr. Mazumdar further refers definition in Section 2(d) of Cr.P.C. with

regard to complaint particularly the explanation of that section and submits

that the report made by the police in the case discloses that after

investigation that can be deemed to be complaint. Much emphasis has been

taken by the learned Senior counsel for the petitioner on the word

'discloses' and submits that in the case in hand, the ingredients of those

sections are not made out. He further refers Section 195(1)(a)(1) of Cr.P.C.

and submits that offence punishable under Sections 172 to 188 of the

Indian Penal Code can be lodged only by way of complaint in writing of the

public servant to whom he is administratively subordinate. He also draws

attention of the Court to one letter, contained at page 67 of the petition,

wherein the name of the petitioner has been disclosed and his educational

detail has also been disclosed as MBA from Delhi University. By way of

referring this document, he submits that the entire case is malafidely made

out against the petitioner. According to him, the complaint has been filed by

respondent no.5 under influence and in connivance with the member of the

political party, which is in power of the State and they want to malign the

image of the petitioner for political gains. He further submits that for the

same allegation, earlier a complaint was also alleged before the Election

Commission of India (respondent no.2) by none other than the Secretary of

that political party, which was examined by the Election Commission of India

and after considering the reply of the petitioner, the Election Commission of

India has dropped the proceeding. He further submits that the entire case is

politically motivated. He also submits that this case is fully covered in light

of the judgment passed by the Hon'ble Supreme Court in the case of State

of Haryana v. Bhajan Lal, reported in 1992 Supp (1) SCC 335. On

these grounds, he submits that this Court is competent to interfere under

Article 226 of the Constitution of India.

11. Per contra, Mr. Ashutosh Anand, learned A.A.G.-III appearing for the

respondent-State submits that the nomination paper filed by the petitioner

was false as he has indicated about his degree of MBA from Delhi University.

He refers to the contents of the FIR and by way of reading the FIR, he

submits that cognizable offence is made out and the police is having ample

jurisdiction to investigate the case. He further refers the letter of the

University issued by the Dean of Faculty of Management Studies, University

of Delhi and submits that by way of that letter it has been informed that no

such candidate with the name of the petitioner was admitted or passed out

from the Faculty of Management Studies in the year 1993. By way of

referring Annexure-6 of the petition which is a letter written by the General

Secretary cum Spokesperson of Jharkhand Mukti Morcha to the Chief

Election Commissioner, he submits that the complaint with regard to false

nomination has been made to the Election Commission. He further refers

reply of the petitioner, which was filed before the police pursuant to notice

under Section 41-A Cr.P.C. and submits that in his reply, the petitioner has

not disclosed anything about his degree. He also refers nomination,

contained in the writ petition and submits that falsely the degree has been

shown. He refers to another letter of the University of Delhi which is on the

same line. He also submits that the petitioner got the MBA degree in the

year 2015 from Pratap University and certificate of that has been annexed

with the petition. By way of referring charge-sheet, he submits that the

police has found prima facie case under Sections 177, 181 of the Indian

Penal Code and Section 125A of the Representation of the People Act and

rightly the matter was referred to the Deputy Commissioner, Godda. The

charge-sheet has been filed under Sections 417 and 420 of the Indian Penal

Code. He further refers the Press Note of Election Commission of India

dated 16.06.2020 and submits that in view of this Press Note, the Election

Commission of India was required to file complaint against the petitioner

and in spite of that allegation, the Election Commission of India has

dropped the proceeding against the petitioner vide order dated 25.09.2020.

He also submits that this aspect of the matter was brought to the

knowledge of the Delhi High Court in W.P.(C) No.4071 of 2022, which was

filed by Jharkhand Murti Morcha in view of the FIR lodged in the State of

Jharkhand and submits that the same has been adjourned for placing

certain documents on record on behalf of respondent no.1 of that case,

Election Commission of India. By way of referring Section 2(d) of Cr.P.C., he

submits that once the charge-sheet has been submitted, that can be treated

as complaint. By way of referring Section 2(r) Cr.P.C., he submits that the

police report has been defined under that section. He draws attention of the

Court to Section 155 Cr.P.C. particularly Sub-section (4) and submits that in

view of that section if the case relates to two or more offences of which at

least one is cognizable, the case shall be deemed to be a cognizable case,

notwithstanding that the other offences are non-cognizable. He also refers

Section 200 Cr.P.C. and submits that if a public servant is not acting or

purporting to act in the discharge of his official duty, the court is competent

to take cognizance. He further refers Section 460 Cr.P.C and submits that

irregularities do not vitiates the proceeding. By way of referring Section 469

Cr.P.C, he submits that where the commission of the offence was not known

to the person aggrieved by the offence or to any police officer, the period of

limitation in relation to an offender will start from the first day on which

such offence comes to the knowledge of such person or to any police

officer. He further refers paragraph 9 of the judgment relied by the learned

Senior counsel for the petitioner in the case of Narayan Lal (supra) and

submits that this case is distinguishable in light of paragraph 9 of that

judgment. By way of distinguishing the judgment relied by the learned

Senior counsel for the petitioner in the case of Keshav Lal Thakur

(supra), he submits that later part of paragraph 3 of that judgment is in

favour of the State. He also refers Section 195 Cr.P.C and submits that the

cognizance has been taken under Section 171G of the Indian Penal Code

and accordingly Section 195 Cr.P.C. is not attracted. He relied upon the

judgment rendered by the Allahabad High Court in the case of Santosh

Kumar & Ors. v. State of U.P. & Ors. , reported in

MANU/UP/0335/2019.

12. Paragraph 10 of the said judgment is quoted herein below:

"10. In the judgment passed by the Hon'ble Supreme has held in the matter of "Keshav Lal Thakur vs. State of Bihar" reported in 1996 (11) SCC 557 has held that :-

3. We need not go into the question whether in the facts of the instant case the above view of the High Court is proper or not for the impugned proceeding has got to be quashed as neither the police was entitled to investigate into the offence in question nor the Chief Judicial Magistrate to take cognizance upon the report submitted on completion of such investigation. On the own showing of the police, the offence under Section 31 of the Act is non-cognizable and therefore, the police could not have registered a case for such an offence under Section 154 Cr. P.C, Of course, the police is entitled to investigate into a non- cognizable offence pursuant to an order of a competent Magistrate under Section 155(2) Cr. P.C. but, admittedly, no such order was passed in the instant case. That necessarily means, that neither the police could investigate into the offence in question nor submit a report on which the question of taking cognizance could have arisen. While on this point, it may be mentioned that in view of the proviso to Section 2(d) Cr. P.C., which defines 'complaint', the police is entitled to submit, after investigation, a report relating to a non-cognizable offence in which case such a report is to be treated as a 'complaint' of the police officer concerned, but that explanation will not be available to the prosecution here as that relates to a case where the police initiates

investigation into a cognizable offence - unlike the present one - but ultimately finds that only a non- cognizable offence has been made out."

13. By way of referring this judgment, he submits that it has been held

that once a non-cognizable offence is investigated by the police and report

submitted, that will be treated as a complaint. He submits that in the same

line, Kerala High Court has decided the case in the case of P.

Kunhumuhammed v. State of Kerala , reported in

MANU/KE/0158/1980.

14. Paragraphs 12 to 16 of the said judgment are quoted herein below:

"12. The decision in Mallikharjuna Prasadarao v. Emperor 1933 Mad WN 876 held that the report of a police officer after investigation into a non-cognizable case without the order of a Magistrate can only be treated as a complaint under Section 190(1)(a) of the old Code and is not to be equated to a police report excluded from the definition of complaint under Section 4(1)(h) of the Code. In Public Prosecutor v. A.V. Ramiah AIR 1958 Andh Pra 392 : 1958 Cri LJ 737 a Division Bench of the High Court including Subba Rao, C.J. as he then was, held that a charge-sheet laid in a non- cognizable case after due investigation without the order of a Magistrate is to be treated only as a complaint. With due respect, these decisions appear to be in conformity with the dictum laid down by the Supreme Court in Rishbud's case.

13. Section 190 of the old Code contemplated cognizance being taken in three contingencies, namely, on receiving a complaint, upon a report of the police officer and upon information received from any person other than a police officer or upon the knowledge or suspicion of himself. In addition, one could also refer to Section 37 of the Kerala Police Act which contemplates a police officer laying information before a Magistrate.

Section 190 Clause (1)(b) could only refer to report of a police officer under Section 173 of the old Code. The report under Section 173 of the Code could follow either investigation by a competent police officer into a cognizable offence or investigation by a competent police officer into a non-cognizable offence made under orders of the Magistrate as contemplated by Section 155(2) of the old Code. Such a report is taken out of the category of a complaint under Section 4(1)(h) of the old Code. But a report of the police officer followed by investigation into a non-cognizable offence made without the order of a Magistrate cannot be treated as

a valid report of a police officer for the purposes of Section 173 or Section 190(1)(b) of the old Code. However, it can be treated as a complaint for the purposes of Section 190(1)(a) of the old Code. Though it can be treated as a complaint, it does not mean that it is a complaint by a private individual. It must be treated as a complaint by a public servant for the purposes of Section 200 Clause (aa) of the old Code. Treating it as a complaint, it is open to a Magistrate to take cognizance under Section 190(1)(a) of the old Code. At the same time, as pointed out in Rishbud's case , it is open to the Magistrate to order fresh investigation under Section 202 of the old Code, to obviate any prejudice to the accused. Depending on the facts and circumstances of a particular case, it is also open to the Magistrate to decline to take cognizance, Thus, under the old Code, in a case where a station house officer without orders of a competent Magistrate conducts investigation into a non-cognizable offence and submits a report or charge-sheet, it is open to the Magistrate to follow one of the three following courses: (1) treating the report of the police officer as a complaint and take cognizance under Section 190(1)(a) of the old Code, (2) to rectify the defect and obviate prejudice to the accused by ordering investigation under Section 202 of the Code or, (3) decline to take cognizance of the offence. Where, however, without objection, the case is allowed to proceed to trial and ends in a conviction, the illegality in investigation in view of Section 537 of the old Code cannot per se vitiate the trial. In such a case, the accused could be acquitted only if prejudice or miscarriage of justice has been established.

14. Have these propositions been in any way changed under the new Code? I may mention that Sections 154, 155, 156, 173 and 190 of the new Code are practically the same as the corresponding provisions of the old Code, except that Section 190(1)(b) refers to a "police report" and not o "report of a police officer". While the old Code did not define a "police report" or a "report of a police officer", Section 2(r) of the new Code defines a police report as a report forwarded by a police officer to a Magistrate under Sub-section (2) of Section 173. Section 2(d) of the new Code defines a 'complaint' in the same manner as in the old Code except that it excludes a "police report" instead of excluding a "report (if a police officer" as in the old Code. In addition, an Explanation has been added to the definition of 'complaint' which states that a report made by a police officer in a case which discloses, after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to be the complainant. It appears to me that this Explanation has been very carefully worded taking into consideration

the judicial precedents under the old Code.

15. It is made clear under the new Code that the police report, that is a report under Section 173(2) of the new Code cannot be treated as a complaint. The decisions referred to above arising under the old Code, made it clear that the report of a police officer in a non- cognizable offence following any investigation made without an order of the Magistrate can be treated as a complaint for the purposes of Section 190(1)(a) and Section 4(1)(h) of the old Code. This position can no longer continue to the same extent and in the same manner under the new Code. That is because of the restricted scope of the Explanation to Section 2(d) of the new Code. If the Legislature wanted to follow the judicial precedents under the old Code, the Explanation could merely have stated that the report made by a police officer in a case relating to commission of a non- cognizable offence shall be deemed to be a complaint. Instead, the Explanation states that the report made by a police officer in a case which discloses, after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint. In other words, it is clear that a case where commission of a non-cognizable offence alone (is alleged or disclosed) at the commencement of the investigation cannot and does not fall within the scope of the Explanation. The Explanation takes within its scope only a case at the beginning of the investigation of which commission of a cognizable offence is alleged or disclosed or where it is doubtful if it relates to commission of a cognizable offence or a non-cognizable offence and investigation discloses only the commission of a non-cognizable offence. Other categories are excluded from the purview of the Explanation.

16. It is therefore clear that there is only minor change introduced by the provisions of the new Code. A consideration of the judicial precedents referred to above in the light of the changes made in the new Code, would suggest the following propositions as being applicable under the new Code. (1) Section 155(2) of the new Code prohibits investigation by a police officer into a non-cognizable offence without the order of a Magistrate. A violation of this provision would stamp the investigation with illegality. (2) This defect in the investigation can be obviated and prejudice to the accused avoided by the Magistrate ordering investigation under Section 202 of the Code. (3) The report of a police officer following an investigation contrary to Section 155(2) could be treated as a complaint under Section 2(d) and Section 190(1)(a) of the Code if at the commencement of the investigation the police officer is led to believe that the case involved commission of a cognizable offence or if there is doubt about it and investigation establishes only commission of a non-cognizable offence. (4) If at the

commencement of the investigation it is apparent that the case involved only commission of a non-cognizable offence, the report followed by investigation cannot be treated as a complaint under Section 2(h) or Section 190(1)(a) of the Code. (5) Whenever a report of a police officer relating to a non-cognizable offence is brought to the notice of a Magistrate he has to look into the matter and apply his judicial mind and find out whether, (a) it is a case where reinvestigation has to be ordered under Section 202 of the Code, or (b) whether it could be treated as a complaint under Section 2(h) and Section 190(1)(a) of the Code and ii so cognizance could be taken, (c) or whether it is a case where the report cannot be treated as a complaint under Section 2(h) and Section 190(1)(a) of the Code or, (d) it is a fit case for taking cognizance taking into consideration all the attendant circumstances. (6) If these aspects are not brought to the notice of or adverted to by the Magistrate at that stage and trial is concluded, the trial cannot be said to be vitiated on account of the defect as the defect in the investigation precedent to trial could be cured by Section 465 of the new Code, unless failure of justice has been occasioned thereby."

15. On these grounds, he submits that there is no substance in the

argument of the learned Senior counsel for the petitioner and at this stage,

this Court may not exercise its power under Article 226 of the Constitution

of India.

16. Mr. Jitendra Shankar Singh, learned counsel appearing for respondent

no.5, who is the informant, submits that the entire aspect of the matter has

been argued by the learned counsel for the State. However, he added that

cognizance has been taken under Section 171G of the Indian Penal Code

and therefore Section 195 Cr.P.C. is not attracted. He further submits that

since the FIR is registered for cognizable offence and the report was

submitted by the police, there was no need of any order of the learned

Magistrate. He also submits that so far as cognizance order is concerned,

that has been challenged by the informant before the revisional court on the

ground that cognizance under Sections 417 and 420 of the Indian Penal

Code has not been taken, which is still pending.

17. Dr. Ashok Kumar Singh, learned counsel for respondent no.2 i.e. the

Election Commission of India submits that the Election Commission is not

concerned with Section 171G of the Indian Penal Code. The Election

Commission has taken cognizance of the fact when the complaint of JMM

was received. The petitioner submitted his show-cause and considering the

show-cause of the petitioner, the Election Commission being satisfied with

the show-cause, has dropped the proceeding against the petitioner.

18. By way of reply, Mr. R.S. Mazumdar, learned Senior counsel appearing

for the petitioner submits that the facts of the FIR is required to be looked

into to come to the conclusion whether the ingredients of sections under

which the police has investigated, is made out or not. He relied upon the

judgment rendered by the Hon'ble Supreme Court in the case of

Neeharika Infrastructure Pvt. Ltd. v. State of Maharashtra &

Others, reported in 2021 SCC OnLine SC 315.

19. Paragraphs 37 and 57 of the said judgment are quoted herein below:

"37.Then comes the celebrated decision of this Court in the case of Bhajan Lal (supra). In the said decision, this Court considered in detail the scope of the High Court powers under Section 482 Cr.P.C. and/or Article 226 of the Constitution of India to quash the FIR and referred to several judicial precedents and held that the High Court should not embark upon an inquiry into the merits and demerits of the allegations and quash the proceedings without allowing the investigating agency to complete its task. At the same time, this Court identified the following cases in which FIR/complaint can be quashed:

"102.(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under

an order of a Magistrate within the purview of Section 155(2) of the Code.

(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

(4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the Act concerned, providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."

xxx xxx xxx

57. From the aforesaid decisions of this Court, right from the decision of the Privy Council in the case of Khawaja Nazir Ahmad (supra), the following principles of law emerge:

i) Police has the statutory right and duty under the relevant provisions of the Code of Criminal Procedure contained in Chapter XIV of the Code to investigate into cognizable offences;

ii) Courts would not thwart any investigation into the cognizable offences;

iii) However, in cases where no cognizable offence or offence of any kind is disclosed in the first information report the Court will not permit an investigation to go on;

iv) The power of quashing should be exercised sparingly with circumspection, in the 'rarest of rare cases'. (The rarest of rare cases standard in its application for quashing under Section 482 Cr.P.C. is not to be confused with the norm which has been formulated in the context of the death penalty, as explained previously by this Court);

v) While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint;

vi) Criminal proceedings ought not to be scuttled at the initial stage;

vii) Quashing of a complaint/FIR should be an exception and a rarity than an ordinary rule;

viii) Ordinarily, the courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities. The inherent power of the court is, however, recognised to secure the ends of justice or prevent the above of the process by Section 482 Cr.P.C.

ix) The functions of the judiciary and the police are complementary, not overlapping;

x) Save in exceptional cases where non-

interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offences;

xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice;

xii) The first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported.

Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. During or after investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure;

xiii) The power under Section 482 Cr.P.C. is very wide, but conferment of wide power requires the court to be cautious. It casts an onerous and more diligent duty on the court;

xiv) However, at the same time, the court, if it thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, more particularly the parameters laid down by this Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra), has the jurisdiction to

quash the FIR/complaint; and xv) When a prayer for quashing the FIR is made by the alleged accused, the court when it exercises the power under Section 482 Cr.P.C., only has to consider whether or not the allegations in the FIR disclose the commission of a cognizable offence and is not required to consider on merits whether the allegations make out a cognizable offence or not and the court has to permit the investigating agency/police to investigate the allegations in the FIR."

20. By way of referring this judgment, he submits that the Hon'ble

Supreme Court has held that where no cognizable offence or offence of any

kind is disclosed in the FIR, the Court will not permit an investigation to go

on. He further refers Section 33(A) of the Representation of the People Act

particularly Sub-section (3) of that Section and submits that after furnishing

all the information, it is the requirement that the returning officer shall

display the information by affixing a copy of the affidavit at a conspicuous

place at his office for the information of the electors relating to a

constituency for which the nomination paper is delivered. By way of relying

this Section, he submits that it was within the domain of the electors about

the nomination paper filed by the petitioner. He further submits that this

case is fully covered in light of the judgment rendered by the Rajasthan

High Court in the case of Narayan Lal (supra) and the learned Single

Judge has quashed the proceeding holding that so far as ingredient of

Section 420 of the Indian Penal Code is concerned, that is not made out

against that petitioner.

21. In view of the above facts and the submission of the learned counsel

for the parties, the Court has gone through the materials on the record. It is

an admitted fact that the petitioner has contested from Godda constituency

in the year 2009, 2014 and 2019 and in all three elections, he has been

declared elected. It has been alleged that in the year 2014 nomination, the

petitioner has disclosed his MBA degree, obtained from Delhi University. In

light of Section 33(A) of the Representation of the People Act, 1951

particularly Sub-section (3), it is crystal clear that the returning officer is

required to display the information by affixing a copy of the affidavit at a

conspicuous place at his office, which is mandatory in nature. Such

information was displayed in conspicuous place by the returning officer of

the Godda. In view of this provision of law, the contention of the informant

that only after the tweet of the political party's leader, he came to know

about the said nomination, is not found satisfactory. The punishment under

Section 171G of the Indian Penal Code is only fine and the punishment

under Section 125A of the Representation of the People Act is six months

imprisonment. Thus in view of these sections, the cognizance was required

to be taken only within a period of one year. Section 468, 469 and 470

Cr.P.C. has been considered by the Full Bench of the Hon'ble Supreme Court

in the case of Sarah Mathew v. Institute of Cardio Vascular

Diseases, reported in (2014) 2 SCC 62 wherein it has been held that the

purpose of limitation under Section 468 Cr.P.C. the relevant date is the date

of filing of the complaint or the date of institution of prosecution and not

the date on which the Magistrate takes cognizance. Paragraph 51 of the

said judgment is quoted herein below:

"51. In view of the above, we hold that for the purpose of computing the period of limitation under Section 468 CrPC the relevant date is the date of filing of the complaint or the date of institution of prosecution and not the date on which the Magistrate takes cognizance. We further hold that Bharat Kale which is followed in Japani Sahoo lays down the correct law. Krishna Pillai will have to be restricted to its own facts and it is not the authority for deciding the

question as to what is the relevant date for the purpose of computing the period of limitation under Section 468 CrPC."

22. In the case in hand, the allegation is of the year 2014 and the FIR

has been instituted on 27.08.2020.

23. In the case of Keshav Lal Thakur (supra), the Hon'ble Supreme

Court has held that in a case where the police is not entitled to investigate

the case in question nor the CJM to take cognizance upon report of the

police, the High Court is required to interfere. In that case, the High Court

has not interfered and the Hon'ble Supreme Court has quashed the

proceeding. In the same judgment, it was further clarified that in light of

Explanation to Section 2(d) Cr.P.C., which defines complaint, the police is

entitled to submit, after investigation, a report relating to a non-cognizable

offence in which case such a report is to be treated as a complaint of the

police officer concerned, but that explanation will not be available to the

prosecution as that relates to a case where the police initiates investigation

into a cognizable offence, but ultimately finds that only a non-cognizable

offence has been made out. In the case in hand, the learned Magistrate has

not taken cognizance under Section 417 and 420 of the Indian Penal Code.

Thus, it is clear that the police has investigated non-cognizable offence,

which was not allowed under the law. Admittedly, the case was lodged

against the petitioner by a stranger. The Sub-section (2) of Section 155

Cr.P.C. bars that no police officer shall investigate a non-cognizable case

without the order of the Magistrate, who is empowered to try such case.

The entire allegation is with regard to the degree of the petitioner and the

cognizance has been taken under Section 171G of the Indian Penal Code

and Section 125A of the Representation of the People Act. In absence of

any order of the Magistrate, the investigation is bad in law and has been

rightly disclosed in the charge-sheet which was referred to the Deputy

Commissioner, Godda. Moreover, the learned Magistrate has not treated the

charge-sheet as a complaint, as argued by the learned counsel for the State

that that will be deemed to be a complaint and without treating the charge-

sheet as a complaint, the learned Magistrate has taken cognizance, which is

not permissible under the law. Section 195 Cr.P.C. bars to register the case

under Sections 172 to 188 of the Indian Penal Code except only complaint

in writing of the Public Servant to whom he is administratively subordinate.

Even the argument of the learned counsel for the State as well as the

informant, so far as this Section is concerned, is accepted, the cognizance

has not been taken under Sections 172 to 188 of the Indian Penal Code and

the cognizance has been taken under Section 171G of the Indian Penal

Code, the ingredients of Section 171G, so far as the petitioner is concerned,

is not made out. For the sake of convenience, Section 171G of the Indian

Penal Code is quoted herein below:

"171G. False statement in connection with an election.-- Whoever with intent to affect the result of an election makes or publishes any statement purporting to be a statement of fact which is false and which he either knows or believes to be false or does not believe to be true, in relation to the personal character or conduct of any candidate shall be punished with fine."

24. On perusal of this Section, it shows that false statement in relation to

the personal character or conduct of any candidate shall be punished with

fine. In the case in hand, the entire allegation is not made against any third

person. The ingredient of Section 171G of the Indian Penal Code is not

made out.

25. It is an admitted fact that on twitter handle of Jharkhand

Mukti Morcha, said information was disclosed and basing on

that information on the twitter, the FIR has been lodged against the

petitioner. The Election Commission of India has already dealt with the

complaint, as submitted by the learned counsel for the Election Commission

of India and has dropped the proceeding against the petitioner. In view of

these facts, it can be safely said that the prosecution is politically motivated.

A reference may be made to the judgment rendered by the Hon'ble

Supreme Court in the case of State of Haryana v. Bhajan Lal , reported

in 1992 Supp (1) SC 335. Paragraph 102 of the said judgment is quoted

herein below:

"102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-

cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."

26. In view of the said judgment, the directions (2) and (4) come in

favour of the petitioner.

27. It has been held in the recent judgment delivered by the

Hon'ble Supreme Court in the case of Neeharika Infrastructure

Pvt. Ltd. (supra) that in cases where no cognizable offence or offence of

any kind is disclosed in the FIR that the Court will not permit an

investigation to go on. In the case in hand, cognizance under Sections

417 and 420 of the Indian Penal Code has not been taken against the

petitioner.

28. So far as MBA certificate of the petitioner is concerned, it has

been disclosed in the petition that the degree of MBA was obtained by

the petitioner from Pratap University in the year 2015, contained at page

80 of the petition. The allegation with regard to 2014 nomination has

been considered by the Election Commission of India and the

proceeding has been dropped, which is also barred in terms of Section

468 Cr.P.C., as discussed supra. Moreover, so far as allegation of

false educational qualification is concerned, that will be affected if it is

found to be true, sub-section (4) of Section 123 of the

Representation of the People Act will be attracted, which describes corrupt

practice.

29. In view of this provision of law, Section 171G of the Indian Penal

Code is not attracted. Section 125A of the Representation of the People Act

is the penalty section and educational certificate is attracted under Sub-

section (4) of Section 123 of the Representation of the People Act. It is well

settled that when a special statute prescribes the punishment, the Indian

Penal Code is not attracted. In the case in hand, the case is arising under

the Representation of the People Act. Thus, the Indian Penal Code is not

attracted.

30. In the case of Santosh Kumar & others (supra) relied by

the learned counsel for the State investigation was undertaken for

non-cognizable offence and charge-sheet was filed under non-

cognizable offence, only and in that situation it was held that it should

be treated as a complaint. In the case of P. Kunhumuhammed

(supra) relied by the learned counsel for the State, the trial was

concluded and in that situation, it was held that it can be cured by

Section 465 of Cr.P.C. In the case in hand, the learned court has not

taken cognizance under Sections 417 and 420 of the Indian Penal Code

and cognizance has been taken under Section 171G of the Indian

Penal Code and Section 125A of the Representation of the People Act,

which are non-cognizable. The case is also time barred by Section

468 of Cr.P.C. as discussed above. Thus, these two judgments relied

by the State are distinguishable on this account.

31. It is by now well settled that summoning of an accused is a serious

matter and the Court before summoning an accused must after due

application of mind carefully scrutinize the evidence and then only pass an

order if the offence was prima facie found to have been committed by the

accused. Reference in this regard can be made to the judgment passed by

Hon'ble the Supreme Court in the case of Pepsi Food Ltd. v. Special

Judicial Magistrate, reported in (1998) 5 SCC 749.

32. In view of the above facts, reasons and analysis as discussed herein

above, this petition succeeds. Accordingly, the entire criminal proceeding in

connection with Deoghar Town P.S. Case No.427 of 2020 including the

order taking cognizance dated 26.07.2021, pending in the court of the

learned Chief Judicial Magistrate, Deoghar is, hereby, quashed.

33. Accordingly, this petition stands allowed and disposed of.

(Sanjay Kumar Dwivedi, J.) Ajay/