R.N. Biswal, J.
1. The petitioner, in this writ application, challenges the legality of the order dated 5.4.2007 passed by learned Sessions Judge, Bhawanipatna in Criminal Revision No. 49 of 2006 confirming the order dated 26.6.2006 passed by the S.D.J.M. Bhawanipatna in 2 (c) CC No. 9 of 2006 refusing to take cognizance of the offence under Sections 33-A/125-A of the Representation of the People Act, 1951 (hereinafter referred to as 'R.P. Act') read with Section 177 of I.P.C.
2. As per the writ petition, opp. party contested the 2004 Assembly Election from 99-Bhawanipatna (S.C.) Assembly Constituency. He filed the nomination papers along with two affidavits one in Form No. 26 of the Election Rules and the other in the format prescribed by the Election Commission in its order dated 27.3.2003. In the affidavit in Form No. 26, a candidate is required to furnish the following information :
(I) Pending cases in which charges have been framed for the offence punishable with imprisonment for two years or more;
(II) Cases of conviction with sentence of imprisonment for one year or more for the offences other than those covered under Sub-section (1), (2) or (3) of Section 8 of the R.P. Act.
In the 2nd affidavit the candidate is required to furnish the following information:
(I) All pending cases against him/her in which cognizance has been taken by the Court;
(II) Assets of the candidate.
(III) Liabilities of the candidate; and
(IV) Educational qualification of the candidate.
3. After the election, opp. party was declared elected from 99-Bhawanipatna Assembly Constituency. The Deputy Chief Electoral Officer on receiving two complaints alleging therein that opp. party submitted false information in the affidavit suppressing the fact of pendency of certain criminal cases against him on the date of filing his nomination paper directed the Sub-Collector, Bhawanipatna to enquire into it. Accordingly, he approached the Superintendent of Police, Kalahandi to supply information regarding criminal case, if any, pending against the opp. party as on the date of filing of the nomination i.e. 31.3.2004. After due verification, the Superintendent of Police Kalahandi, intimated that four cases were pending against the opp. party on the date of filing the nomination papers. Since the opp. party submitted false affidavits, suppressing the fact of pendency of four cases all punishable with imprisonment for more than two years, the predecessor of the petitioner filed the complaint bearing 2 (c) CC No. 9 of 2006 before learned S.D.J.M., Bhawanipatna, praying therein to take appropriate action against the opp. party. It is the further case of the petitioner that since there was delay in official process for filing the complaint, a petition was also filed for condonation of delay.
4. Learned S.D.J.M., Bhawanipatna after perusing the complaint took cognizance of the offence under Sections 33-A/125-A of the R.P.Act read with Section 177 of I.P.C. wofeorder dated 25.4.2006 and directed for issuance of summons to the opp. party fixing 19.6.2006 for appearance.
5. Being aggrieved with the said order, the opp. party assailed it before this Court in CRLMC No. 1140 of 2006 which was disposed of on 17.5.2006 with the following orders.
Heard.
Invoking inherent jurisdiction of this Court under Section 482 Cr.P.C. the petitioner seeks to assail the order dated 25.4.2006 passed by the S.D.J.M., Bhawanipatna in 2 (c) CC No. 9 of 2006, by the said order of the Court below has taken cognizance of offences under Sections 33A and 125A of the Representation of People Act, 1951 and under Section 177 of I.P.C. According'to the learned Counsel for the petitioner the limitation for taking cognizance of the aforesaid offences having grossly barred, the Court below could not have taken cognizance thereof.
Be that as it may, a perusal of the impugned order reveals that the Court below has neither applied its mind to the documents produced before it nor did it arrive at prima facie satisfaction about commission of the alleged offences. In view of the aforesaid infirmity, I quash the impugned order and remit the matter back to the Court below with direction to it to peruse the Case Diary and other materials and thereafter if it is prima facie satisfied that the ingredients of the alleged offences are made out, it shall pass necessary orders in consonance with law.
The CRLMC is accordingly disposed of.
Pursuant to the aforesaid order, the matter was taken up by learned S.D.J.M., Bhawanipatna and by order dated 26.6.2006 he dismissed the complaint petition inter alia on the ground that charge in none of the four cases had been framed by the date of filing of the affidavit by opp. party.
6. Being aggrieved with the said order, the petitioner herein filed Criminal Revision No. 49 of 2006 in the Court of learned Sessions Judge, Kalahandi-Nawapara at Bhawanipatna, which was also dismissed vide order dated 5.4.2007, on the ground that the present Sub-Collector was not the competent person to file the revision and that since no charge had been framed in any of the four G.R. Cases, the opp. party was not required to mention the same in the affidavit. The said order is under challenge now.
7. Learned Addl. Government Advocate appearing for the petitioner submitted that while filing his nomination a candidate is required to file two affidavits-one in Form 26 in conformity with Rule 4A of the conduct of Election Rules, 1961 and the other one in the pro forma prescribed by the Election Commission of India vide its order dated 27.3.2003 pursuant to the judgment of the apex Court. In the first affidavit, the candidate has to furnish information if he is an accused of any offence punishable with imprisonment of two years or more, that too in which charge has been framed by the competent Court. In the 2nd affidavit, a candidate is required to give information regarding pendency of criminal cases if any against him in which cognizance had been taken besides other information. In the present case, even though four criminal cases were pending against the opp. party where cognizance had already been taken as on the date of filing of the nomination papers, the opp. party filed two affidavits (sic) that no such case was pending against him, which were false. According to learned Counsel for petitioner, the trial Court without examining the case properly, dismissed the complaint case and similarly the learned Sessions Judge without going deep into the matter dismissed the Criminal Revision. As such he prayed to allow the writ petition.
8. Learned Counsel appearing for the opp. party at the out set, contended that as per Section 195 of Cr.P.C., no court can take cognizance of an offence under Section 177 of IPC, except on the complaint in writing of the public servant concerned or some other public servant to whom he is administratively subordinate. The CRLMC, at hand having been filed by the present Sub-Collector of Bhawanipatna and not his predecessor, who, was designated as returning officer, nor by any other public servant to whom the designated Sub-Collector is administratively subordinate, it is not maintainable under law. In support of his submission, he relied upon several decisions.
9. Admittedly, in the case at hand, the Sub-Collector, Bhawanipatna, who was designated as returning officer filed the complaint case. But the revision before the learned Sessions Judge and the present CRLMC have been filed by his successor. The complaint as envisaged in Clause (a) Sub-section (1) of Section 195 Cr.P.C. is a public duty of the public servant concerned and not his personal privilege. Hence, the successor in office of the public servant concerned can file a complaint under Section 195 of Cr.P.C. In other words, public servant concerned under Section 195 (1)(a) includes the person holding the office of public servant for the time being and also his successor in office. So, only because the successor of office of the Sub-Collector, Bhawanipatna, who was designated as returning officer filed the criminal revision before the learned Sessions Judge and the present CRLMC before this Court, it cannot be said that he is not competent to file the revision and the CRLMC. None of the decisions cited by the learned Counsel for the opp. party is applicable to the present case.
10. Learned Counsel for the opp. party drawing attention of the Court to Section 33-A of the R.P. Act submitted that in the first affidavit opp. party was not required to give information regarding pendency of the criminal cases against him as on the date of filing of the nomination, since in none of the cases charge had been framed against him by them. So, the trial Court rightly dismissed the complaint case which was rightly also confirmed by the revisional Court.
11. It would be useful to quote Section 33-A of the R.P.Act, which reads as follows:
Right to information - (1) A candidate shall, apart from any information which he is required to furnish, under this Act or the rules made thereunder, in his nomination paper delivered under Sub-section (1) of Section 33, also furnish the information as to whether-
(i) he is accused of any offence punishable with imprisonment for two years or more in a pending case in which a charge has been framed by the Court of competent jurisdiction;
(ii) he has been convicted of an offence other than any offence referred to in Sub-section (1) or Sub-section (2), or covered in Sub-section (3), of Section 8 and sentenced to imprisonment for .one year or more.
(2) The candidate or his proposer, as the case may be, shall, at the time of delivering to the returning officer the nomination paper under Sub-section (1) of Section 33, also deliver to him an affidavit sworn by the candidate in a prescribed form verifying the information specified in Sub-section (1).
(3) The returning officer shall, as soon as may be after the furnishing of information to him under Sub-section (1), display the aforesaid information by affixing a copy of the affidavit, delivered under Sub-section (2), at a conspicuous place at his office for the information of the electors relating to a constituency for which the nomination paper is delivered.
So, as per this provision, a candidate is required to furnish information if he is an accused of any offence punishable with imprisonment for two years or more that too in which charge has been framed. Similarly, he has to give information if he has been convicted in any offence other than the offence referred to in Sub-section (1) or Sub-section (2), or covered in Sub-section (3) of Section 8 and sentenced to imprisonment for one year or more. In the present case, admittedly, charge had not been framed against the opp. party till submission of the nomination. It is not the case of the petitioner (complainant) that opp. party was ever convicted and sentenced to imprisonment for one year or more in any case. So, with regard to first affidavit the trial Court rightly held that no prima facie case was made out against the opp. party to take cognizance under any offence against him. The Revisional Court also rightly confirmed it.
12. With regard to second affidavit, in the proforma prescribed by the Election Commission of India, learned Counsel for the opposite party submitted that since the complaint petition was silent with regard to taking action against the opp. party for providing false information therein, the trial Court as well as the revisional Court rightly did not consider that aspect.
13. In the 2nd affidavit, besides other information a candidate is required to furnish information regarding pendency of criminal case, if any, against him in which cognizance had been taken as on the date of filing of nomination papers. In the present case, four criminal cases were pending against the opp. party, where cognizance had already been taken as on the date of filing of the nomination papers, but the opp. party filed a false affidavit stating therein that no such case was pending against him. But on perusal of the complaint petition, it is found, that allegation with regard to filing of second false affidavit-is conspicuously absent therein. There is also no prayer to take action against the opp.party for filing the 2nd false affidavit; as such the trial Court as well as the revisional Court rightly did not pass any order in that respect.
Therefore, under such circumstances, the CRLMC stands dismissed.