Ragesh Vs. State of Kerala - Court Judgment

Excerpt:
- orderv. ramkumar, j.1. in this revision filed under sections 397 and 401 cr.p.c., the revision petitioner who was the complainant in a private complaint c.m.p. no. 3699 of 2009 on the file of the judicial first class magistrate-i, kannur alleging the commission of offences punishable under section 31 of the representation of the people act, 1951 and sections 465, 468, 471 and 120-b read with section 34 i.p.c., challenges the order dated 9.11.2009 passed by the magistrate refusing to take cognizance of the aforesaid offences and dismissing the complaint after holding that no sufficient ground has been made out even for forwarding the complaint under section 156(3) cr.p.c.2. the case of the complainant can be summarised as follows:the complainant is a permanent resident of kannur assembly.....

Judgment:
ORDER

V. Ramkumar, J.

1. In this revision filed under Sections 397 and 401 Cr.P.C., the revision petitioner who was the complainant in a private complaint C.M.P. No. 3699 of 2009 on the file of the Judicial First Class Magistrate-I, Kannur alleging the commission of offences punishable under Section 31 of the Representation of the People Act, 1951 and Sections 465, 468, 471 and 120-B read with Section 34 I.P.C., challenges the order dated 9.11.2009 passed by the Magistrate refusing to take cognizance of the aforesaid offences and dismissing the complaint after holding that no sufficient ground has been made out even for forwarding the complaint under Section 156(3) Cr.P.C.

2. The case of the complainant can be summarised as follows:

The complainant is a permanent resident of Kannur Assembly Constituency and he is a voter in the said Constituency. Shri. K. Sudhakaran was a member of the Kerala Legislative Assembly representing the Kannur Assembly Constituency. He resigned from the post after he was elected as a Member of Parliament from Kannur Parliamentary Constituency. Since there arose a vacancy in the Kannur Assembly segment, the Election Commission of India issued notification to conduct a by-election to 010 Kannur Assembly Constituency. Immediately after Shri. Sudhakaran resigned from the membership of Kannur Assembly Constituency, the CPI(M) leaders of Kannur District decided to wrest the Kannur Assembly seat by resorting to whatever means. To translate their illegal designs into action, they obtained the help of revenue officers and panchayath officers etc. Accused Nos. 1 to 300 are either workers or leaders of CPI (M) in the localities of Kannur District and the adjoining districts. They are ordinary residents at various places outside Kannur Assembly Constituency and are not entitled to enroll as voters in the Kannur Assembly Constituency. They conspired with accused Nos. 301 to 309 who are government officials and prepared false residency certificates to show that accused Nos. 1 to 300 are ordinary residents of Kannur Assembly Constituency. To get into the voters' list of Kannur Assembly Constituency, the accused persons resorted to various tactics. They conducted a secret survey so as to ascertain the names and details of the inmates of the buildings which are either not occupied or vacated by the original occupants, the buildings which were demolished but the demolitions were not recorded in the official records of the local authorities etc. They also decided to enroll in the house numbers of the buildings which are occupied by the workers of the CPI(M). The accused persons who are already enrolled in other constituencies and who had actually cast their votes in the parliamentary election conducted in the year 2009, again filed applications before the Electoral Officer, Kannur Assembly Constituency to enroll as voters on the strength of false residence certificates issued by accused Nos. 301 to 309. They filed false declarations before the Electoral Registration Officer stating that they are ordinary residents of Kannur Assembly Constituency. Some of the accused used fictitious house numbers and house names and several of them had shown the names of the house of their party colleagues as their places of residence. Accused Nos. 301 to 309 who were bound to do their official acts honestly and bona fide, forged the residential certificates to certify that accused Nos. 1 to 300 are ordinary residents of Kannur Assembly Constituency. All the accused persons had hatched a criminal conspiracy to sabotage the election to be conducted to the Kannur Assembly Constituency and in furtherance of their common intention fraudulently and dishonestly forged false residence certificates and A1 to A300 used the said certificates knowing that they are false. A1 to A300 filed false declaration before the Electoral Registration Officer, Kannur stating that they are ordinary residents of Kannur Assembly Constituency fully knowing that their statements are false. The house name, house number, serial number of voters, ID card number etc. are shown in Schedules A and B appended to the private complaint. The accused, by their action, have committed offences punishable under Section 31 of the Representation of the People Act, 1951 and Sections 465, 468, 471 and 120(b) r/w Section 34 IPC. On 30.10.2009, the revision petitioner/complainant had filed a complaint before the Station House Officer, Kannur Town Police Station. Even though the Station House Officer issued a receipt acknowledging receipt of the complaint, the police have not cared to register an FIR due to the interference and influence of some of the leaders of the ruling political party. Aggrieved by the inaction on the part of the S.H.O., Kannur Town Police Station, the complainant approached the Superintendent of Police, Kannur to get his grievances redressed. But the Superintendent of Police has also failed to take necessary action in the complaint. Hence the private complaint with the prayer to forward the complaint to the police for investigation under Section 156(3) Cr.P.C.

3. The learned Magistrate dismissed the complaint stating the following reasons:

Chapter VI of Representation of Peoples Act, 1951 deals with disputes regarding the election and Chapter VII deals with the corrupt practices and Electoral Offences. The offence alleged against the accused are coming with the ambit of corrupt practices and electoral offences Under Section 123, 125-A, 129, 134 of Representation of Peoples Act, 1951. Thus it can very well say that the offence alleged against the accused are offences relating to election and so it is only the grounds to file election petition before the competent authority having the competency to entertain the petition. Hence I am of the view that there is no sufficient ground made out by the complainant to send this petition before SHO, Kannur for investigation Under Section 156(3) Cr.P.C. So this petition is dismissed.

Hence the present revision by the complainant.

4. I heard Adv. Shri. P. K. Ravi Sankar, the learned Counsel appearing for the revision petitioner and Shri. V.G. Govindan Nair, the learned Director General of Prosecution.

5. The learned Magistrate is factually incorrect in stating that Chapter VI of the Representation of the People Act, 1951 deals with the disputes regarding the election and Chapter VII thereof deals with the corrupt practices and electoral offences. Actually, the Representation of the People Act, 1951 is divided into various parts and some of the parts have been further subdivided into chapters. Evidently, the learned Magistrate was .making a mistake. What he meant by mentioning Chapter VI was actually Part VI pertaining to 'disputes regarding elections' and Part VII dealing with 'corrupt practices and electoral offences'. Those two parts really pertain to the disputes which have to be resolved after election with the presentation of an Election Petition to the High Court. Those parts have nothing to do with the trial of the offences alleged in the complaint. The allegation in the private complaint filed by the petitioner is mainly the pre-election maneuverings and manipulations dishonestly made by A1 to A300 and their party men even before the revision of the electoral roll for the eventual inclusion of their names in the electoral roll. The said allegation has nothing to do with electioneering or the electoral malpractices committed by the candidates or their agents so as to attract Parts VI and VII of the Representation of the People Act, 1951. The specific allegation in the complaint is that A1 to A300 obtained false residence certificates from A301 to A307 for the purpose of getting themselves enrolled as voters in the Kannur Assembly Constituency and thereby attracting the offence punishable under Section 31 of the Representation of the People Act, 1951, which is an independent penal provision. Section 31 of the Representation of the People Act, 1951 reads as follows:

31. Making false declarations.- 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.

6. The only other matter which requires consideration is as to whether the bar under Section 32(3) of the Representation of the People Act, 1951 is attracted so as to preclude the court from taking cognizance of an offence under Sub-section (1) of Section 32 except on a complaint made by the order of or under the authority of the Election Commission or the Chief Electoral Officer of the State. Section 32 of the Representation of the People Act, 1951 reads as follows:

32. Breach of official duty in connection with the 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 preparation, revision or correction of an electoral roll or the inclusion or exclusion of any entry in or from that 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 which 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 cognizance 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.

7. The interdict under Sub-section (3) of Section 32 is against taking cognizance of an offence punishable under Sub-section (1) of Section 32 and the same will be attracted only if there has been a breach of official duty by the Electoral Registration Officer, Assistant Electoral Registration Officer or other person required by or under the 1951 Act to perform any official duty inconnection with the preparation, revision or correction of an electoral roll or the inclusion or exclusion of any entry in or from that roll. It is only in such cases that 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, the Court is precluded from taking cognizance of the offence punishable under Sub-section (1) of Section 32. In this case, the main allegation in the complaint is that Al to A300 had obtained false or forged residence certificates from A301 to A307 for the purpose of eventual inclusion of their names in the electoral roll. A301 to A307 are not the authorities envisaged by Section 32(1) of the 1951 Act engaged in connection with the preparation of electoral rolls. They are either Village Officers or Grama Panchayath Secretaries or Revenue Officials and are not in any way connected with the preparation, revision or correction of electoral roll or the inclusion or exclusion of any entry in or from the electoral roll. The allegation of the complainant is that A 301 to A 307 dishonestly and falsely certified that Al to A300 are ordinary residents of Kannur Assembly Constituency and A1 to A300 armed with such forged and false certificates made false declarations before the Electoral Registration Officer. It is Section 31 and not Section 32(1) which is thereby attracted. Hence, apart from the fact that the reasons mentioned by the learned Magistrate have absolutely no connection with the trial of the offence under Section 31 of the Representation of the People Act, 1951, the bar under Sub-section (3) of Section 32 of the Representation of the People Act, 1951 also is not attracted.

8. There is yet another illegality committed by the learned Magistrate. The dismissal of the complaint by the Magistrate was at the pre-cognizance stage and he had no jurisdiction to dismiss the complaint at that stage. He could only reject the complaint. The dismissal of a complaint can only be under Section 203 Cr.P.C which power can be exercised only at the post-cognizance stage. For this reason also, the impugned order cannot be sustained.

9. Since the complaint was rejected (dismissed) at the pre-cognizance stage without issuing process to any of the accused persons, the accused are not necessary parties in this revision. They are not entitled to be heard also in the light of the decision reported in Sivasankar v. Santhakumari 1993 (1) KLT 1 (Mad.).

The impugned order is accordingly set aside and the private complaint filed as C.M.P. No. 3699 of 2009 shall stand restored to the file of the Judicial First Class Magistrate-I, Kannur and shall be dealt with in accordance with law and if necessary, by forwarding the same under Section 156(3) Cr.P.C.

This revision is allowed as above.

Dated this the 10th day of March, 2010.