Delhi District Court
Hinu Mahajan vs . Indra Jha Cnr No.Dlsh010074712018 on 21 January, 2019
In the court of Additional Session Judge04, District Shahdara, Room
No.51, Second Floor, Karkardooma Courts, Delhi
Hinu Mahajan Vs. Indra Jha CNR No.DLSH010074712018
I.D. No. 284/18 date of institution : 05.11.2018
Criminal Revision No.59/18 decision reserved on: 21.01.2019
PS : Seema Puri date of decision : 21.01.2019
In the matter of
Ms. Hinu Mahajan
wife of Sh. Amit Kumar Srivastava,
R/o H. No. M11B1, Dilshad Garden,
Delhi110095. ....Revisionist
versus
1. Ms. Indra Jha
wife of Sh. Vijay Shankar Jha
R/o H. No. G10/S2, Dilshad Colony
New Delhi110095. ....Respondent no.1
2. State of NCT of Delhi. ....Respondent no.2
JUDGMENT
[On revision petition arising from order dated 19.07.2018 by the court of Sh. Prayank Nayak, Ld. M.M., Shahdara District, Delhi (in brief the trial court) in CC no. 1980/18 Hinu Mahajan Vs. Indra Jha while refusing for registration of FIR against respondent no.1 in application u/s 156 (3) Cr.P.C.].
Crl. Rev. No. 59/18. Hinu Mahajan Vs Indra Jha Page 1 of 71.1 (Introduction) - This revision petition is emerging from order dated 19.07.2018 by the trial court, in application u/s 156(3) Cr.P.C. while refusing for directions for registration of FIR, after considering the status report, filed by SI Manu Chauhan, Incharge, PPSeema Puri. The petitioner/complainant is feeling aggrieved by the order dated 19.07.2018, that is why this petition.
1.2 Succinctly, the petitioner/complainant filed a complaint u/s 200 Cr.P.C. (without citing any penal provisions of law) against the respondent no. 2 and the complaint was accompanying an application u/s 156 (3) Cr.P.C. for registration of FIR. The complainant alleges that she was aspirant and she contested the MCD election of 2017. The respondent no.2 also filed her nomination to contest the elections of 2017, however her declaration with regard to her educational qualification, name of school, proper address, weight of jewellery, year of passing of each educational qualification were left blank or not disclosed, for which objections were also filed to the Returning Officer of Ward no. 28E, Dilshad Colony about such deficiencies, however the respondent no.2 was declared valid voter of Ward no. 28E in the nomination. Moreover the respondent no.2 is also electoral from District Madhubani, Bihar, it was not deleted from the electoral poll of District Madhubani, Bihar, there is violation of section 17 of the Representation of People Act, 1950. She is having two enrollments and two voter I cards of Delhi and of Bihar, which is a serious offence. Lastly in her face book account, she has misrepresented to be B.A. from Delhi University and her date of birth is different from her actual date of birth, as in the nomination, in one of the record, she declared to be Intermediate. Thus Crl. Rev. No. 59/18. Hinu Mahajan Vs Indra Jha Page 2 of 7 it requires to summon and try the respondent no.2 and directions to the police to register the case.
2.1 (Plea in the petition) - The trial court observed that documents and evidence is in the custody of complainant, nothing is out of reach of the complainant and it does not require investigation through the police, although the recourse of inquiry u/s 202 Cr.P.C. would be available. However the reasons are misplaced, since it will require involvement of police machinery to visit at different places with regard to events involved and verification of documentary record from the offices concerned, which may not be possible for the petitioner/complainant. The application u/s 156 (3) Cr.P.C. was wrongly dismissed, while relying upon Lalita Kumari Vs. State of U.P. & Ors. 2014 (2) SCC 1.
During the course of oral submissions Sh. Y.S. Chauhan, Advocate with petitioner reiterated the similar feature of the case while referring the record of declaration, the detail of face book to demonstrate the existence of facts as well as their reiteration before the trial court, that there exist serious offences and its investigation is warranted, through the police machinery, particularly the petitioner/complainant wrote to Returning Officer and other competent authorities but no result. The case is covered by Lalita Kumari case (supra). Moreover the provisions of the Information Technology Act, 2000 will also be applicable to be invoked against the respondent no.1 (however it could not be shown as to which section when the query was raised).
Crl. Rev. No. 59/18. Hinu Mahajan Vs Indra Jha Page 3 of 72.2 (Plea of respondent no.1) - Sh. Amit Kumar, Advocate for respondent no.1 Indra Jha opposes the contentions of petitioner that there is no substance or merit in the revision petition as no offence is made out against the respondent no.1 nor it needs any investigation by the police. The trial court has relied upon M/s. Skipper Beverages Pvt. Ltd. vs. State 2002 Crl. LJ. NOC 333 (Delhi) and Ravindra Kumar Vs. State (Govt. of NCT of Delhi) & Anr. 2012 VIII AD (Delhi) 403 about the discretion to be exercised by the Magistrate as well as the requirement of law before direction registration of FIR, the complaint was not fulfilling the test. Otherwise as per section 17 of the Representation of People Act, 1950, it is not an offence but law mandates that no person shall be entitled to be registered in the electoral roll for more than one constituency. In the eventuality for correction in the entries in electoral roll or inclusion of name in the electoral roll, sections 22 and 23 of the Act, 1950 lays down the procedure. Lastly merely on the basis of entry of name of a one person in electoral roll of two constituencies will not disqualify for election to legislative assembly and elections cannot be setaside on such ground, reliance is placed on Baburao Vs. Manikrao AIR 1999 SC 2028. Therefore the revision petition is liable to be dismissed.
2.3 (Plea of State/respondent no.2) - Sh. Vineet Kumar, Ld. Addl. P.P. for State/respondent no.2, requests that although a question has arisen with regard to facts appearing on face book, which are other than the facts, whether it would be covered under the Act, 2000 to made it punishable, particularly the existence of face book account is not disputed, but who had opened and in what manner it was opened, Crl. Rev. No. 59/18. Hinu Mahajan Vs Indra Jha Page 4 of 7 neither it is appearing in the complaint nor in the status report filed by SI Monu Chauhan. Similarly in case of a person having two electoral rolls and two voter ID cards, under what circumstances the same were got prepared is matter of evidence and inquiry, but as appearing, there is no flaw in the findings given by the trial court. The court may pass an appropriate order.
2.4. (Counter submissions on behalf of petitioner) Ld. Counsel for petitioner has been to section 30 and 31 of the Act, 1950 that there is bar of jurisdiction of civil courts with regard to the matters mentioned therein but there is no bar to the criminal proceedings, therefore as per section 31 making a false declaration is punishable upto one year or with fine or with both and it is triable by Metropolitan Magistrate. Therefore it is not so that the offences are not punishable under the Act, 1950. It needs investigation.
2.5. The respondent no.1 is present in person and she is inquired about her qualification, she states that she is Intermediate and she also qualified B.A. First Year, B.A. Second Year and she could not write her exams for B.A. Final Year. She also explained that earlier on the face book she had displayed the information as B.A. but it has been rectified as Intermediate. She has been in Delhi, as her husband belongs to Delhi and she franchised in Delhi only.
3.1 (Findings with reasoning) - The rival submissions are considered, besides the provisions of law. As appearing from the complaint, no section of any Act was cited and during the course of submission in revision petition, the petitioner has referred the Crl. Rev. No. 59/18. Hinu Mahajan Vs Indra Jha Page 5 of 7 Information Technology Act, 2000, however no particular section was pointed out to be invoked in the present situation.
Section 31 of the Act, 1950 is with regard to making false declarations about electoral roll or inclusion or exclusion of an entry in the electoral roll or statement of declaration in writing which is false, it is punishable upto one year and as per schedule PartII of the Criminal Procedure Code 1973 with regard to classification of offences in respect of offences other than IPC, those offences which are punishable for imprisonment less than three years or with fine only will be non cognizable offences, for them the complaint will be maintainable and FIR cannot be registered. In the scheme of Act, 1950, section 32 talks about cognizable of certain offences, which will be only when there is a complaint by or under the authority from Election Commission or Chief Electoral Officer of the State concerned.
Thus under the present scenario, as per the direction given in the complaint, it is not a case of consideration for disqualification or of settingaside of election, thus the case law Baburao (supra) presented on behalf of respondent no.2 is not applicable visavis it is the petitioner/complainant to establish her case by leading evidence and as appearing there is no flaw in the findings given by the trial court while dealing with application u/s 156 (3) Cr.P.C. Hence, this revision petition is dismissed.
3.2 Accordingly this revision petition stand disposed off as dismissed Crl. Rev. No. 59/18. Hinu Mahajan Vs Indra Jha Page 6 of 7 and copy of this judgment along with record be sent to the trial court forthwith.
Digitally signed by INDERJEET SINGH Announced in open court today INDERJEET Location: Shahdara district, Karkardooma Monday, 1 Magha, Saka 1940 SINGH Courts, Delhi Date: 2019.01.17 17:06:12 +0530 (Inder Jeet Singh) Additional Sessions Judge04 (Shahdara), KKD Courts, Delhi 21.01.2019 Crl. Rev. No. 59/18. Hinu Mahajan Vs Indra Jha Page 7 of 7