Orissa High Court
Chiranjib Biswal vs Bishnu Charan Das And Another on 22 March, 2016
Author: S. K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
CRLMC NO. 4433 OF 2015
An Application under section 482 of the Code of Criminal
Procedure, 1973 in connection with I.C.C. Case No.565 of 2014
pending on the file of Sub-Divisional Judicial Magistrate,
Jagatsinghpur.
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Chiranjib Biswal ......... Petitioner
-Versus-
Bishnu Charan Das
& another ......... Opposite parties
For Petitioner: - Mrs. Rajdipa Behura
Sangram Kumar Senapati
Dipanshu Das
S. K. Das, B. K. Das
For Opposite Party no.1: - Sri Asok Mohanty
(Senior Advocate)
Mr. Devashis Panda,
A. K. Panda
For Opposite Party no.2: - A.S.C.
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P R E S E N T:-
THE HONOURABLE MR. JUSTICE S.K. SAHOO
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Date of hearing- 25.02.2016 : Date of Judgment- 22.03.2016
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S. K. SAHOO, J.Who says politicians only fight amongst themselves at the time of election? Politics and conflicts are the two sides of the same coin. Political conflicts can go to any extent and it is 2 not merely the difference of opinion but sometimes it is full of mudslinging and character assassination. Lack of political ideologies appears to be a common feature in such never ending conflicts. Politics without principle and politicians without character are the most damaging elements of the social order.
The petitioner Chiranjib Biswal even after being elected as a member of Legislative Assembly from 104- Jagatsinghpur Assembly Constituency on the ticket of National Congress Party is fighting the legal battle against his rival candidate Bishnu Charan Das of Biju Janata Dal. While describing himself in the petition filed before this Court to have hailed from a disciplined, educated and respectable family, the petitioner in a wrong tone of voice has described his opponent as a notorious and destructive element having no regard for law and administration of justice.
2. The petitioner has filed this application under section 482 of Code of Criminal Procedure, 1973 with a prayer to quash the proceeding in I.C.C. Case 565 of 2014 pending in the Court of learned S.D.J.M., Jagatsinghpur. The learned S.D.J.M., Jagatsinghpur vide order dated 17.9.2014 has taken cognizance of offence under section 125A of the Representation of the People Act, 1951 (hereafter the '1951 Act') and issued process against the petitioner.
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3. The opposite party no.1 Bishnu Charan Das filed a complaint petition in the Court of learned S.D.J.M, Jagatsinghpur on 27.8.2014 against the petitioner stating therein that he was a candidate of Biju Janata Dal for the 104-Jagatsinghpur Assembly Constituency along with the petitioner and others for the election which was held on 17.4.2014. As per the notification published under the provisions of 1951 Act by the competent authority for holding general election in the State of Odisha for the members of State Assembly, the opposite party no.1, the petitioner filed their respective nomination papers along with affidavits for contesting the election before the Returning Officer. There were altogether nine numbers of candidates in the election fray. On 24.3.2014 the petitioner delivered his nomination papers along with affidavit disclosing his assets and liabilities as per sections 33 and 33-A of 1951 Act and Rule 4-A of the Conduct of Elections Rules, 1961 (hereafter '1961 Rules') in Form No.26. The nomination paper and the affidavit filed by the petitioner were accepted by the Returning Officer and the petitioner contested the election with the opposite party No.1. It is the further case of the opposite party no.1 that after verification of the affidavit filed by the petitioner as well as the documents, displayed in the internet, the opposite party no.1 came to know that the petitioner had intentionally concealed 4 some of his valuable properties as well as that of his spouse in the affidavit. The opposite party no.1 instructed his election agent Mr. Dolagobinda Das to send application to the Election Commission of India disclosing concealment of material and substantial information by the petitioner in his affidavit which was accordingly sent on 14.7.2014. It is stated that the office of Election Commission of India intimated through letter to file case in the competent Court by the aggrieved person.
It is the further case of the opposite party no.1 that the petitioner with mala fide intention concealed certain information in the affidavit relating to his immovable properties.
It is stated that the Consolidation Plot No.806 measuring an area of Ac 0.40 dec. under Chaka No.131 which is agricultural land and also non-consolidation Plot No.288 measuring an area of Ac. 0.04 dec. (homestead land), total measuring Ac. 0.44 dec. of land under Consolidation Khata No.7 situated in village- Tulanga, P.S. & Tahasil- Tirtol, Dist- Jagatsinghpur which stands recorded in the names of (i) Meera Biswal, wife of late Basanta Biswal (ii) Chiranjib Biswal (petitioner), son of late Basanta Biswal (iii) Ranjit Biswal, son of late Basanta Biswal in the finally published Consolidation R.O.R. in the year 1987 which was mutated in the year 2012 in the name of the petitioner, his mother and brother out of which 5 petitioner had got 1/3rd share in the aforesaid Ac.0.44 dec. of the land has been concealed in the affidavit.
It is further stated that Ac.0.68 dec. of land which appertains to Plot No.808 under Khata No.498/2 of village- Tulanga wherein the petitioner has got 1/3rd share had also been concealed in the affidavit.
It is further stated that a homestead land measuring an area of Ac 0.088 dec. which appertains to Plot No.2367 under Khata No.1833 situated in village- Bhubaneswar Sahar, Unit No.-30, Laxmisagar-1 which stands recorded in the name of deceased father of the petitioner namely Basanta Biswal, out of which the petitioner was having 1/3rd share along with his mother and brother after the death of his deceased father and over the said land, multi storied building having been constructed and given on rent to different commercial institutions has also been concealed in the affidavit.
It is the further case of the opposite party no.1 that even though the petitioner is the Managing Director of Karuna Infratek PVt. Ltd. Which situates at Bhubaneswar, he had neither disclosed the said fact in the affidavit nor had shown his remuneration nor disclosed number of shares which he was holding with its value.
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It is the further case of the opposite party no.1 that the petitioner was also holding the post of Director of Karuna Age Publication Pvt. Ltd., as well as Ashribad Prakashan Pvt. Ltd. but the said fact was also concealed in the affidavit.
It is the further case of the opposite party no.1 that even though the spouse of the petitioner is a Director of Cargo Resourcing Exports Pvt. Ltd., Swami Resorts Pvt. Ltd., and also Managing Director of Karuna Age Publication Pvt. Ltd. and Ashribad Prakashan Pvt. Ltd., the said facts were concealed in his affidavit in Form No.26. The income and remuneration of the petitioner and his wife in the aforesaid Companies have been suppressed knowingly and intentionally in his affidavit. The petitioner also suppressed his assets and liabilities as well as that of his spouse in the aforesaid Companies so also the investment in the shape of capital money or value of shares or in the shape of bonds, debentures and their share units and its value in the aforesaid Companies.
It is the further case of the opposite party no.1 that the petitioner had also concealed in his affidavit his, his spouse and dependants' Saving Account Numbers in respect of S.B.I. Main Branch and its location, Andhra Bank, Cuttack, S.B.I., Sahidnagar Branch, SBI, Rajpath Evening Branch, Bhubaneswar and Indusind Bank, Bhubaneswar respectively. The petitioner 7 also concealed in the affidavit his own saving account in U.B.I., Sahidnagar, Bhubaneswar, U.B.I., Secretariate Branch, Bhubaneswar and Bank of Baroda, Jagatsinghpur.
According to the opposite party no.1, such non- disclosure of substantial and material information by the petitioner in Form No. 26, warrants conviction of the petitioner under section 125A of 1951 Act.
4. On receipt of such complaint petition, the initial statement of the opposite party no.1 was recorded on 28.8.2014 under section 200 Cr.P.C. On 10.9.2014 one witness namely Dolagobinda Das was examined under section 202 Cr.P.C. On the very day, the opposite party filed a memo not to adduce further evidence.
On 17.9.2014 the learned S.D.J.M., Jagatsinghpur on perusal of the averments made in the complaint petition, initial statement as well as evidence recorded under section 202 Cr.P.C. and taking note of the documents available on record, on being satisfied that there is prima facie case made out against the petitioner to have committed an offence under section 125A of 1951 Act, took cognizance of such offence and issued process against the petitioner.
The petitioner filed a petition under section 205 Cr.P.C. on 16.12.2014 which was allowed vide order dated 8 21.1.2015 by the learned S.D.J.M., Jagatsinghpur and his personal attendance was dispensed with. On 18.3.2015 the petitioner filed two petitions, one under section 251 Cr.P.C. to drop the proceeding and discharge him and another petition wherein a prayer was made to direct the opposite party no.1 to serve copies of the documents on which the opposite party no.1 relied upon. The learned S.D.J.M., Jagatsinghpur vide order 31.8.2015 rejected the petition filed by the petitioner under section 251 Cr.P.C. So far as the second petition filed by the petitioner is concerned, the opposite party No.1 filed the copies of the documents which were also received by the petitioner.
The petitioner challenged the rejection order of the learned S.D.J.M., Jagatsinghpur of his petition under section 251 Cr.P.C. in filing a revision petition in the Court of learned Sessions Judge, Jagatsighpur which was registered as CRL. Revision No.21 of 2015. The learned revisional Court vide order dated 10.09.2015 held that the learned S.D.J.M. has not committed any illegality in rejecting the application filed by the petitioner under section 251 Cr.P.C. and accordingly the revision petition was held to be devoid of merit.
5. The petitioner in his wisdom while not challenging the order dated 10.09.2015 of the revisional Court passed in CRL. Revision No.21 of 2015 has filed this application under 9 section 482 Cr.P.C. to quash the entire proceeding of the complaint case vide I.C.C. Case No.565 of 2014 pending before the learned S.D.J.M., Jagatsinghpur.
6. Mrs. Rajdipa Behura, learned counsel appearing for the petitioner in her simple but inimitable style contended that the evidence adduced by the opposite party No.1 and his agent in the complaint proceeding are omnibus in nature and on the entirety of the evidence available on record, no prima facie case is made out against the petitioner rather on perusal of the nomination paper, it is abundantly clear that the petitioner had disclosed each and every investment of his own income as well as that of his wife and son. She vehemently urged that the cognizance has been taken in a mechanical manner without proper application of judicial mind and the petitioner has been unnecessarily dragged into the proceeding without any fault. It is the further contention of learned counsel that on perusal of the nomination paper and affidavit, it would be clear that the petitioner had disclosed all the required information and he had never concealed any aspect and therefore the learned Magistrate should not have proceeded on the basis of bald allegation made by the opposite party. She emphatically contended that the complaint case has been instituted due to political vendetta and with an ulterior motive to affect the popularity of the petitioner 10 as the opposite party was defeated from the petitioner in the General Assembly Election. Highlighting each of the allegations leveled in the complaint petition, it was urged that the allegations are absurd and having no basis and if the proceeding is allowed to continue, it would result in flagrant miscarriage of justice.
Mr. Devashis Panda, learned counsel for the opposite party no.1 on the other hand while countering the argument contended that the averments made in the complaint petition, the statements recorded under sections 200 and 202 Cr.P.C. and the documents filed by the complainant with the complaint petition make it abundantly clear that the petitioner has committed an offence punishable under section 125A of the 1951 Act. The learned counsel further submitted that each of the items on the basis of which complaint petition has been filed is supported by documentary evidence and at this stage this Court is not expected to assess the evidence and adjudicate the matter like a Trial Court and documents filed by the petitioner should not be looked into and since on the face of the complaint petition, the ingredients of the offence are prima facie made out, this Court should refrain from exercising its inherent power under section 482 of the Cr.P.C. to quash the proceeding. 11
7. Section 190 Cr.P.C. sets out three different ways enumerated in clauses (a), (b) and (c) to take cognizance of an offence. The first mode of taking cognizance of any offence by the Magistrate is upon receiving a complaint of facts which constitute such offence. The term "complaint' has been defined in section 2(d) of the Code and the term 'offence' has been defined in section 2(n) of the Code. It is the duty of the Magistrate to find out if the complaint at all constitute any offence or not and if so, he is at liberty to take cognizance under section 190 (1) (a) Cr.P.C. The words "may take cognizance"
which appears in sub-section (1) of Section 190 Cr.P.C. cannot equated with "must take cognizance". The word "may" is not a word of compulsion. It is an enabling word and it only confers a capacity, power or authority and implies discretion. The expression "cognizance" connotes to take notice of judicially. Taking cognizance does not involve any formal action of any kind. It occurs as soon as a Magistrate applies his mind to the suspected commission of an offence. It is nothing but taking of judicial notice on a cause or matter presented before it so as to decide whether there is any basis for initiating proceedings and determination of the cause or matter judicially. Criminal law cannot be set into motion as a matter of course. Cognizance is taken of an offence and not of the offender. At this stage, the 12 Magistrate has to satisfy whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction can be determined only at the trial stage and not at the stage of enquiry. The Court is not required to go into a detail discussion of the merits or demerits of the case so as to find out if the allegations and the charges are true or not. Adequacy of the evidence will not be seen by the Court at the stage of taking cognizance. At the time of taking cognizance and issuing process on a complaint, the accused has got no locus standi but the Court should keep in mind that judicial process is not utilized as an instrument of opposition or needless harassment.
8. Law is well settled that while making a prayer for quashing an order taking cognizance or quashing the entire criminal proceeding, an accused cannot be permitted to use the material which would be available to him only as his defence. The Trial Court should be left to consider and weigh materials brought on record by the parties for the purpose of marshalling and appreciating the evidence. While invoking inherent power under section 482 Cr.P.C. to quash a criminal proceeding, the High Court cannot look into any document relied on by the accused which would require proof in accordance with law and may be subjected to rebuttal evidence. The Court has to strictly 13 confine itself to the allegation made in the First Information Report and charge sheet or the complaint petition and the statements collected under sections 200 and 202 Cr.P.C. A mini trial at that stage is impermissible. The acceptance of the documents filed by the defence or consideration of defence plea by the High Court under section 482 Cr.P.C. at the stage of cognizance would certainly open flood gate for mini trial and should be discouraged as it is not neither proper nor legal.
In case of State of Madhya Pradesh v. Awadh Kishore Gupta reported in (2004) 1 SCC 691, speaking for the Bench, Hon'ble Justice Arijit Pasayat observed as follows:-
"...The powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest Court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so, when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of 14 course, no hard and fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage. It would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises, arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with. In proceeding instituted on complaint, exercise of the inherent powers to quash the proceedings is called for only in a case where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of the inherent powers under section 482 of the Code...."
9. The learned counsel for the petitioner Mrs. Rajdipa Behura placing reliance in case of State of Haryana -Vrs.- Ch. Bhajan Lal reported in AIR 1992 SC 604 contended that the inherent power under section 482 Cr.P.C. has to be exercised either to prevent abuse of process of any Court or otherwise to 15 secure the ends of justice. She submitted that if the allegations made in the complaint petition, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence against the accused or the criminal proceeding is manifestly attended with mala fide or maliciously instituted with an ulterior motive for wreaking vengeance on the accused or with a view to spite him due to private and personal grudge, the High Court should exercise its power to prevent abuse of process and to secure ends of justice.
The learned counsel further relied upon the decision of the Hon'ble Supreme Court in case of Harshendra Kumar D.
-Vrs.- Rebatilata Koley reported in (2011) 3 Supreme Court Cases 351 wherein it is held as follows:-
"25. ..... It is fairly settled now that while exercising inherent jurisdiction under section 482 or revisional jurisdiction under section 397 of the Code in a case where complaint is sought to be quashed, it is not proper for the High Court to consider the defence of the accused or embark upon an enquiry in respect of merits of the accusations. However, in an appropriate case, if on the face of the documents- which are beyond suspicion or doubt- placed by the accused, the accusations against him, cannot stand, it would be travesty of justice if the accused is relegated to trial and he is asked to prove his defence before the Trial Court. In such 16 a matter, for promotion of justice or to prevent injustice or abuse of process, the High Court may look into the materials which have significant bearing on the matter at prima facie stage.
26. Criminal prosecution is a serious matter; it affects the liberty of a person. No greater damage can be done to the reputation of a person than dragging him in a criminal case......."
The Hon'ble Supreme Court relying upon the case of Harshendra Kumar D. (supra) held in case of Gunmala Sales (P) Ltd. -Vrs.- Anu Mehta reported in (2015) 1 Supreme Court Cases 103 as follows:-
"34.4. No restriction can be placed on the High Court's powers under Section 482 of the Code. The High Court always uses and must use this power sparingly and with great circumspection to prevent inter alia the abuse of the process of the Court. There are no fixed formulae to be followed by the High Court in this regard and the exercise of this power depends upon the facts and circumstances of each case. The High Court at that stage does not conduct a mini trial or roving inquiry, but, nothing prevents it from taking unimpeachable evidence or totally acceptable circumstances into account which may lead it to conclude that no trial is necessary qua a particular Director."17
Thus from the ratio laid down in the aforesaid decisions, it is clear that it is not proper for the High Court to consider the defence of the accused or conduct a roving enquiry in respect of merit of the accusation. However if on the face of the document/documents placed by the accused which is beyond suspicion or doubt, it is considered that the accusation against the accused cannot stand, in such a matter, in order to prevent injustice or abuse of process, it is incumbent on the High Court to look into such document/documents which have a bearing on the matter even at the initial stage and grant relief to the person concerned by exercising jurisdiction under section 482 of the Code.
10. The learned counsel for the petitioner Mrs. Rajdipa Behura contended that even though the complainant has indicated two vital witnesses i.e. Returning Officer of 104- Jagatsinghpur Assembly Constituency -cum- Sub-Collector, Jagatsinghpur and Election Officer -cum- District Magistrate - cum- Collector, Jagatsinghpur in column no.6 under list of witnesses but those witnesses were not examined in the inquiry conducted by the Magistrate and only the complainant-opposite party No.1 was examined under section 200 of Cr.P.C. and his election agent Dolagobinda Das was examined under section 202 18 Cr.P.C. and therefore the issuance of process in absence of non- examination of such material witnesses stands vitiated.
Mr. Devashis Panda, learned counsel for the opposite party on the other hand contended that it is not at all required for the complainant to examine all his witnesses as the offence is not exclusively triable by the Court of Session and those witnesses can be very well examined at the stage of trial even though they are not examined at the stage under section 202 Cr.P.C.
The purpose of examining the complainant is to ascertain whether the contents of the complaint petition are genuine or not. The statement of the complainant is called the 'initial statement'. There is a distinction between 'taking of cognizance' and 'issuance of process'. One of the objects of examination of the complainant and his witnesses is to ascertain whether there is a prima facie case against the person accused of the offence in the complaint and to prevent the issue of process on a complaint which is either false or vexatious or intended only to harass such person. Such examination is provided to find out whether or not there is sufficient ground for proceeding for that.
In case of Subash Bastia -Vrs.- Bhagabat Bastia reported in Vol.64 (1987) Cuttack Law Times 337, it is held 19 that the omission to examine some witnesses named in the list of witnesses in the complaint petition would not lead to the conclusion that the object of examination is frustrated. At this stage of considering the question of process, question of adverse inference for non-examination of a witness could not arise. The same principle of section 134 of the Evidence Act that number does not count, the matter is important and applicable. The word "shall" in a procedural matter is not mandatory. If the complainant does not examine some of the witnesses present but examine those named in the complaint, the issue of process is not vitiated. Procedural irregularities not going to the root of the matter should not be taken very seriously although the same should in all circumstances be endeavoured to be adhered to.
Section 202 Cr.P.C. deals with postponement of issue of process. What is deferred or suspended by the Magistrate for the time being is the issue of process not the order of the taking cognizance. After recording the initial statement of the complainant and his witnesses under section 200 Cr.P.C., if the Magistrate thinks that these materials are not sufficient for issue of process, he may defer the issue of process to collect some more materials to come to a finding that there is sufficient ground for proceeding and only then he can issue process under section 204 Cr.P.C. In other words, in case the Magistrate does 20 not want to postpone issue of process, in that event procedure under section 202 of the Code becomes redundant and not to be followed. The legislature in its wisdom does not favour any hasty decisions by the Magistrate but expects the Magistrate to act like a reasonable and prudent person for satisfying himself prima facie if there is sufficient ground for proceeding. During inquiry under section 202 Cr.P.C., the choice is that of the complainant. In a case which is triable exclusively by the Court of Session, it is mandatory for the Magistrate to call upon the complainant to produce all his witnesses and examine them on oath, however the Magistrate cannot compel the complainant to produce a particular witness. The effect of non-examination of a particular witness is a matter, which comes for scrutiny during trial. The intention of the proviso to sub-section (2) of section 202 Cr.P.C. in a Sessions triable case manifestly is to safeguard a person from harassment and frivolous prosecution but it is not intended to unjustifiably restrict the option of the complainant.
In the case of Charan Rout -Vrs.- Prafulla Kumar Mangaraj reported in (1996) 11 Orissa Criminal Reports 322, speaking for the Bench, Hon'ble Justice Arijit Pasayat observed that the expression "all his witnesses" appearing in the proviso to sub-section (2) of section 202 Cr.P.C. has to be construed to mean "all witnesses which he chooses to examine". 21 Any other construction would lead to absurd result, and go against the spirit of enactment.
Thus, I am of the humble view that for taking cognizance of offence and for issuance of process in a complaint case, it is not at all necessary for the complainant to examine all the witnesses named in the complaint petition and therefore merely because the complainant-opposite party No.1 choose not to examine the two witnesses i.e. Returning Officer and Election Officer at that stage, the entire proceeding including the issuance of process cannot be vitiated.
11. Section 125A of 1951 Act reads as follows:-
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 22 with imprisonment for a term which may extend to six months, or with fine, or with both.
Clause (i) of section 125A of 1951 Act is not applicable in this case as it is relates to failure of furnishing information relating to sub-section (1) of section 33A. As per section 33A(1), information relating to framing of charge against the candidate by a Court of competent jurisdiction for any offence which is punishable with imprisonment for two years or more in a pending case is to be furnished by him in his nomination paper so also his conviction 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) in which sentence of imprisonment for one year or more has been passed is also to be furnished. The object of enactment of section 33A is to protect the rights of a voter to know about the antecedents of a candidate, especially, the criminal antecedents, contesting the election.
This case, according to the learned counsels for both the parties relates to violation of clauses (ii) and (iii) of section 125A of the 1951 Act.
12. Rule 4A of 1961 Rules states as follows:-
"4A. Form of affidavit to be filed at the time of delivering nomination paper- The candidate or his proposer, as the case may be, 23 shall, at the time of delivering to the returning officer the nomination paper under sub-section (1) of section 33 of the Act, also deliver to him an affidavit sworn by the candidate before a Magistrate of the first class or a Notary in Form
26."
It is the case of the complainant-opposite party No.1 that the affidavit which was sworn by the petitioner in Form No.26 and delivered with the nomination paper, correct details have not been furnished and the petitioner has concealed correct information, inter alia, relating to details of movable assets as well as immovable assets as per column No. 7 (A) & (B) of Part A of Form No.26.
In case of Resurgence India -Vrs.- Election Commission of India reported in AIR 2014 SC 344, it is held as follows:-
"27. What emerges from the above discussion can be summarized in the form of following directions:
(i) The voter has the elementary right to know full particulars of a candidate who is to represent him in the Parliament/Assemblies and such right to get information is universally recognized.
Thus, it is held that right to know about the candidate is a natural right flowing from the concept of democracy and is an integral part of Article 19(1)(a) of the Constitution.
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(ii) The ultimate purpose of filing of affidavit along with the nomination paper is to effectuate the fundamental right of the citizens under Article 19(1)(a) of the Constitution of India. The citizens are supposed to have the necessary information at the time of filing of nomination paper and for that purpose, the Returning Officer can very well compel a candidate to furnish the relevant information.
(iii) Filing of affidavit with blank particulars will render the affidavit nugatory.
(iv) It is the duty of the Returning Officer to check whether the information required is fully furnished at the time of filing of affidavit with the nomination paper since such information is very vital for giving effect to the 'right to know' of the citizens. If a candidate fails to fill the blanks even after the reminder by the Returning Officer, the nomination paper is fit to be rejected. We do comprehend that the power of Returning Officer to reject the nomination paper must be exercised very sparingly but the bar should not be laid so high that the justice itself is prejudiced.
(v) We clarify to the extent that Para 73 of Peoples Union for Civil Liberties case (AIR 2003 SC 2363) will not come in the way of the Returning Officer to reject the nomination paper when affidavit is filed with blank particulars. 25
(vi) The candidate must take the minimum effort to explicitly remark as 'NIL' or 'Not Applicable' or 'Not known' in the columns and not to leave the particulars blank.
(vii) Filing of affidavit with blanks will be directly hit by Section 125A(i) of the RP Act However, as the nomination paper itself is rejected by the Returning Officer, we find no reason why the candidate must be again penalized for the same act by prosecuting him/her."
13. Mrs. Rajdipa Behura, learned counsel for the petitioner contended that when the Returning Officer accepted the nomination paper after scrutiny and did not sought for further details regarding movable and immovable assets and allowed the petitioner to contest the election and petitioner has won the election, the grievance of the complainant, if any, can be dealt with in election petition and therefore entertaining a complaint petition on the allegation of concealment of certain information and non-furnishing of further details under certain headings in Form No.26 is not proper.
I am afraid, such a contention cannot be accepted at its face value for the simple reason that presentation of an election petition and filing of a complaint petition are two different aspects. The ambit and scope of two remedies are entirely different. One may choose either of the two or both. 26
In the case of Kisan Shankar Kathore
-Vrs.- Arun Dattatray Sawant and Ors. reported in AIR 2014 SC 2069, it is held as follows:-
"37. It was argued that acceptance of nomination is as per Section 33 of the Act, which contains requirement for a valid nomination. Further Section 36(2) deals with rejection of nomination on grounds specified therein. It was the submission of the learned Senior Counsel that at the time of scrutiny of the nomination under Section 36, nomination could be rejected only if any of the grounds stipulated in sub- section (2) are satisfied and there cannot be any 'deemed' ground, which is not covered by Section 36(2) of the Act. Therefore, the Returning Officer had rightly accepted the nomination form as none of the grounds specified in Sub-section (2) of Section 36 were attracted. He further submitted that Sections 8A, 9, 9A, 10 and 10A provide disqualifications for Members of Parliament and State Legislature. As per the counsel, from the scheme of the Act it can be seen that at the time of scrutiny of nomination, all that the Returning Officer is required to examine is as to whether the candidate suffers from any of the disqualifications mentioned in Section 8 to 10A of the Act and as to whether the nomination is in the form prescribed by Section 33 and accompanied by the documents mentioned in 27 sub-sections 2 to 7 of Section 33 and whether it is accompanied by an affidavit prescribed by Rule 4A and the deposit required by Section 34 of the Act. Apart from the aforesaid, the Returning Officer is not empowered to reject the nomination on any other ground. He argued that the right of the Returning Officer to conduct a summary inquiry into the correctness or otherwise of the contents of the affidavit filed along with the nomination was expressly taken away as can be seen from the judgment of this Court in the case of People's Union for Civil Liberties. Having noted that the Returning Officer has no power to reject a nomination where false information is furnished or material information is suppressed, the Election Commission of India and Union of India have requested this Court to treat the same as equal to a blank affidavit, as noted in the case of Resurgence India.
It is difficult to accept the aforesaid submissions of the learned senior Counsel as that would amount to nullifying the effect of the judgments as well as guidelines issued by the Election Commission.
38. When the information is given by a candidate in the affidavit filed along with the nomination paper and objections are raised thereto questioning the correctness of the information or alleging that there is non- disclosure of certain important information, it 28 may not be possible for the returning officer at that time to conduct a detailed examination. Summary enquiry may not suffice. Present case is itself an example which loudly demonstrates this. At the same time, it would not be possible for the Returning Officer to reject the nomination for want of verification about the allegations made by the objector. In such a case, when ultimately it is proved that it was a case of non-disclosure and either the affidavit was false or it did not contain complete information leading to suppression, it can be held at that stage that the nomination was improperly accepted. Ms. Meenakshi Arora, learned senior Counsel appearing for the Election Commission, rightly argued that such an enquiry can be only at a later stage and the appropriate stage would be in an election petition as in the instant case, when the election is challenged. The grounds stated in Section 36 (2) are those which can be examined there and then and on that basis the Returning Officer would be in a position to reject the nomination.
Likewise, where the blanks are left in an affidavit, nomination can be rejected there and then. In other cases where detailed enquiry is needed, it would depend upon the outcome thereof, in an election petition, as to whether the nomination was properly accepted or it was a case of improper acceptance. Once it is found that it was a case of improper acceptance, as 29 there was misinformation or suppression of material information, one can state that question of rejection in such a case was only deferred to a later date. When the Court gives such a finding, which would have resulted in rejection, the effect would be same, namely, such a candidate was not entitled to contest and the election is void. Otherwise, it would be an anomalous situation that even when criminal proceedings under Section 125A of the Act can be initiated and the selected candidate is criminally prosecuted and convicted, but the result of his election cannot be questioned. This cannot be countenanced."
14. Adverting to the averments made in the complaint petition regarding non-disclosure of the details of immovable properties, position of the petitioner and his spouse in different Private Limited Companies and income and remuneration received from such companies so also Saving Bank Account numbers etc. in Form No.26, the contentions raised by the respective parties are dealt item wise:-
Regarding Non-disclosure of Agricultural Land and Homestead Land in village Tulanga In the complaint petition, it is stated that so far as immovable properties are concerned, the consolidation Plot No.806 measuring an area of Ac.0.40 dec. under Chaka No.131 30 which is agricultural land and also non-consolidation Plot No.288 measuring an area of Ac.0.04 dec. (homestead land), total measuring Ac.0.44 dec. of land under Consolidation Khata No.7 which is situated in village-Tulanga, P.S. & Tahasil-Tritol, Dist- Jagatsinghpur which stands recorded in the name of the petitioner, his mother and brother as per the finally published consolidation R.O.R. in which the petitioner had got one-third share, have not been disclosed in the affidavit. Similarly it is stated that Ac.0.68 dec. of land which appertains to Plot No.808 under Khata No.498/2 of village-Tulanga wherein the petitioner had got one-third share has also not been disclosed in the affidavit.
It is the contention of the learned counsel for the petitioner that the total area of these lands i.e. Ac.1.29 decimals and its value and share has been mentioned in the affidavit. There are certain typographical errors as Khata No.7/8 in place of Khata No.7 and Plot No.4982 in place of 498/2. However, area, value, situation of the property and mouza are the same. Even the details as per Record of Rights have been properly mentioned in the affidavit.
Form No.26 stipulates under Column No. 7 (B) Note:1 and Note:2 of Part A that so far as the details of immovable assets are concerned, properties in joint ownership 31 indicating the extent of joint ownership are also to be indicated. Similarly each land or building or apartment should be mentioned separately in the format.
The learned counsel for the petitioner fairly submits that even though in detail each land has not been mentioned in Form No.26 but the total area of the land, its value and situation has been mentioned under the details of immovable assets and therefore it can be said that the petitioner had concealed any information.
Learned counsel for the opposite party No.1 on the other hand submits that relevant documents relating to agricultural land and homestead land under Khata No.7 and Khata No.498/2 have been filed along with the complaint petition and total area of the plots comes to Ac.1.12 dec. only. The property disclosed by the petitioner in the affidavit at Annexure- E (details of immovable assets) which consists of 'residential properties' measuring in total Ac.1.29 dec. cannot be said to be the properties being 'agricultural land' and 'homestead land' measuring in total Ac.1.12 dec. which is stated in the complaint petition to have not been disclosed by the petitioner.
Whether there is any typographical error or not and whether the furnishing of details of immovable properties as given by the petitioner satisfies the requirement under Column 32 No. 7 (B) Note:1 and Note:2 of Part A of Form No.26 require verification of documents, its assessment and whether there is any concealment in true sense and whether it was intentionally or knowingly done by the petitioner would require proof in accordance with law and may be subjected to rebuttal evidence which can be better adjudicated by the Trial Court and the same does not come within the scope and purview of section 482 Cr.P.C.
Regarding Non-disclosure of land at Bhubaneswar recorded in the name of deceased grandfather of the petitioner namely late Sri Khetramohan Biswal It is the case of the complainant-opposite party No.1 that there is a valuable homestead land measuring an area of Ac.0.088 dec. appertaining to Plot No.2367 under Khata No.1833 which situate in village-Bhubaneswar Sahar, Unit No.30, Laxmisagar-1 and stands recorded in the name of the deceased father of the petitioner namely Basanta Biswal, out of which the petitioner has got one-third share and there is multi storied building over the said land which has been given on rent to different commercial institutions and information relating to such land and building have been concealed in the affidavit.
It is the contention of the learned counsel for the petitioner that the petitioner and all other legal heirs of his 33 grandfather have relinquished the said property in the name of mother of the petitioner namely Smt. Meera Biswal by executing registered Deed of Relinquishment No.5775 dated 24.5.2005 and the Deed of Relinquishment has been accepted by the General Administration Department of the State Government. Pursuant to the same, the General Administration Department of the State Government by order dated 25.3.2008 allowed mutation in favour of the mother of the petitioner and accordingly Tahasildar, Bhubaneswar was requested to accept the rent of the land from the mother of the petitioner and make necessary correction in the tenant ledger in her favour.
It is the contention of the learned counsel for the opposite party No.1 that Deed of Relinquishment annexed as Annexure-7 indicate that late Khetramohan Biswal had another legal heir apart from his son late Basanta Kumar Biswal and late Basanta Kumar Biswal had another legal heir apart from his widow and sons. Late Basanta Kumar Biswal could not have inherited his late father's properties in its entirety as his deceased father had left behind another legal heir who would have inherited an equal share in her father's property and similarly sister of the petitioner could not have been deprived of her share in her late father's property. It is the further contention of the learned counsel for the opposite party No.1 34 that in Annexure-7 i.e., Deed of Relinquishment executed in the year 2005, one Anuradha Biswal is described as daughter of late Basanta Kumar Biswal and one Basanti Mahalik has been described as daughter of late Khetramohan Biswal.
The averments made in the complaint petition that the land situated at Bhubaneswar stands recorded in the name of the deceased father of the petitioner namely Basanta Kumar Biswal prima facie appears to be not correct as it appears, the land was recorded in the name of Khetramohan Biswal, the grandfather of the petitioner. Since after the death of Khetramohan Biswal, his two legal heirs were late Basanta Kumar Biswal and Basanti Mahalik and after death of Basanta Kumar Biswal, his sons and daughter so also Basanti Mahalik have executed a Deed of Relinquishment in the year 2005 in favour of the mother of the petitioner namely Smt. Meera Biswal vide Annexure-7 which was duly registered and accordingly an order was passed by the Government of Orissa, General Administration Department to mutate the land in favour of Smt. Meera Biswal in the year 2008 vide Annexure-8 and those documents are beyond suspicion and doubt and have a bearing on the matter, in my humble view, it was not at all necessary on the part of the petitioner to mention the information relating to the land in his affidavit in view of such unimpeachable 35 documentary evidence and therefore so far as this land is concerned, it cannot be said that the petitioner with mala fide intention has concealed the information in his affidavit. Regarding Non-disclosure about the petitioner being the Director of Karuna Infratek Pvt. Ltd. and Karuna Age Publication Pvt. Ltd., and Ashribad Prakashan Pvt. Ltd.
It is the case of the complainant that the petitioner is the Managing Director of Karuna Infratek Pvt. Ltd. situated at Bhubaneswar so also the Director of Karuna Age Publication Pvt. Ltd. as well as Ashribad Prakashan Pvt. Ltd. but all these material information have been suppressed.
It is the contention of the learned counsel for the petitioner that the petitioner as Managing Director of Karuna Infratek Pvt. Ltd. had invested shares of Rs.33,000/- (thirty three thousand) which has been disclosed in the affidavit and he has not got any income or remuneration in any manner from the said company for the reason that the said company has not yet started its business. Similarly it is the contention of the learned counsel for the petitioner that the petitioner had disclosed that he had invested Rs.24,81,000/- in Karuna Age Publication Pvt. Ltd. and he has got remuneration of Rs.3,60,000/- from the said company which has been included in shape of total income of the petitioner from different heads. It is the further contention of the 36 learned counsel for the petitioner that the petitioner had mentioned in the affidavit that he had invested Rs.18,50,000/- in Ashribad Prakashan Pvt. Ltd. and has got remuneration to the tune of Rs.3,60,000/- and the same has been included in the total income of the petitioner.
It is the contention of the learned counsel for the opposite party No.1 that Column No. 9 of Part A of Form No.26 requires the candidate to furnish the details of the profession or occupation of self and of spouse and the petitioner has mentioned under this heading as politician and business.
It prima facie appears that even though the petitioner was the Director of three Private Limited Companies i.e., Karuna Infratek Pvt. Ltd, Karuna Age Publication Pvt. Ltd. and Ashribad Prakashan Pvt. Ltd. but he has not mentioned such aspects under the relevant column. Whether the mention of investment in such companies in the affidavit or receipt of remuneration from any such companies would be sufficient to show that the petitioner had not concealed any information deliberately or knowingly would require proof in accordance with law and may be subjected to rebuttal evidence which can be better adjudicated by the Trial Court after scanning the relevant entries in Form No.26 and the documents and the same does not come within the scope and purview of section 482 Cr.P.C. 37 Regarding Non-disclosure of the spouse of the petitioner being the Director of some companies and her income and remuneration from such companies.
It is the case of the complainant that the wife of the petitioner is the Director of Cargo Resourcing Exports Pvt. Ltd., Swami Resorts Pvt. Ltd., Karuna Age Publication Pvt. Ltd. and Ashribad Prakashan Pvt. Ltd. but all these material information have been suppressed in the affidavit.
It is the contention of the learned counsel for the petitioner that the wife of the petitioner is the Director of Cargo Resourcing Exports Pvt. Ltd. but she was having no share in the said company and she has also not received any remuneration from the said company and therefore, such aspect is not required to be reflected in the affidavit. It is the further contention that the wife of the petitioner is the Director of Swami Resorts Pvt. Ltd. in which she was having share of Rs.90,000/- and such aspect has been clearly mentioned in the affidavit and from the said company his wife has not received any remuneration. It is further contended that though the wife of the petitioner is the Director of Karuna Age Publication Pvt. Ltd. but she has not invested a single pie in the said company but has got remuneration of Rs.3,00,000/- as Director and such income has been included and reflected in the affidavit prescribed for the 38 total income of his wife. Since the wife of the petitioner had no investment or equity shares in the said company, such aspect was not required to be mentioned in the affidavit prescribed in column of investments. It is the further contention of the learned counsel for the petitioner that the wife of the petitioner has equity shares/investment of Rs.50,000/- in Ashribad Prakashan Pvt. Ltd. and the same has been reflected in the affidavit prescribed for the purpose of investment. She has got Rs.1,80,000/- as remuneration from the said company and such income has been included in the total income head in the prescribed Form.
It is the contention of learned counsel for the opposite party that the petitioner was required to indicate the positions held by his spouse in the various companies in which she holds Directorial positions as per Column No.9 of the affidavit in Form No.26 which requires details to be given of the profession and occupation of the spouse.
It prima facie appears that even though the wife of the petitioner is the Director of some Private Limited Companies like Cargo Resourcing Exports Pvt. Ltd, Swami Resorts Pvt. Ltd. and Karuna Age Publication Pvt. Ltd. etc. but the petitioner has not mentioned such aspects under the relevant Column No.9 where details of profession or occupation of spouse is required to 39 be mentioned. Whether the mention of investment in such companies or receipt of remuneration from any such companies would be sufficient to show that the petitioner had not concealed any information deliberately or knowingly would require proof in accordance with law and may be subjected to rebuttal evidence which can be better adjudicated by the Trial Court after scanning the relevant entries in Form No.26 and the documents and the same does not come within the scope and purview of section 482 Cr.P.C.
Non-disclosure of Account Numbers of different Banks in respect of the petitioner, his spouse and his dependants It is the case of the complainant that the petitioner had concealed his saving accounts numbers so also that of his spouse and dependants in respect of S.B.I., Main Branch and its location, Andhra Bank, Cuttack, S.B.I., Sahid Nagar Branch, S.B.I., Rajpath Evening Branch, Bhubaneswar and Indusind Bank, Bhubaneswar. Similarly the petitioner has concealed his own saving accounts in U.B.I., Sahid Nagar, Bhubaneswar, U.B.I., Secretariate Branch, Bhubaneswar and Bank of Baroda, Jagatsinghpur in the affidavit.
It is the contention of the learned counsel for the petitioner Mrs. Rajdipa Behura that the petitioner has specifically mentioned the names of the Banks in the affidavit, however, 40 contends that vide letter No.3/ER/2011/SDR dated 23.3.2011, the Secretary of Election Commission, Nirvachan Sadan, Ashoka Road, New Delhi in the shape of instructions at Serial No.17 has intimated to the Chief Electoral Officers of all States and Union Territories that in the affidavit as per format prescribed by the Commission, the candidates are required to furnish only the details of deposits in Bank, Post Office etc. under the heading details of movable assets. It has been clarified that it is not necessary to mention the account numbers in the Bank, Post Office etc. while giving the details of deposits in the various financial institutions. The learned counsel for the petitioner placed such letter dated 23.3.2011 which has been annexed to the petition as Annexure-10.
Learned counsel for the opposite party No.1 on the other hand contended that as per Note No.2 of Column No.7 (A) of the affidavit format, in case of deposit/investment, the petitioner is required to give details including serial number, amount, date of deposit, the scheme as well as name of Branch of the Bank/Institution. Mr. Devashis Panda drew the attention of the Court to the relevant pages of the affidavit where details of fixed deposits and Savings Bank Deposits are given at Annexure- A and contends that while the numbers of all the fixed deposits have been given, but the numbers of the savings deposits have 41 not been given. According to Mr. Panda, Note No.2 to Column No.7 (A) of the affidavit format being the same for both the fixed deposits and Savings Bank Deposits, it cannot be accepted that there was no requirement on the part of the petitioner to mention the numbers of all the savings deposits. According to Mr. Panda, in the complaint petition, ECI's letter No.464/OR/2014/815 dated 22.7.2014 addressed to complainant's Election Agent has been cited as a document relied upon by the complainant. Letter No.4/2014/SDR-Vol.1, dt.26.04.2014 is an enclosure to the aforesaid ECI's letter No.464/OR/2014/815 dated 22.7.2014 wherein it has been stated that the format of the affidavit in Form-26 was amended w.e.f. 01.08.2012. It is the further contention that in view of such letter of the ECI, the earlier letter dated 23.03.2011 vide Annexure-10 is of no relevance and therefore giving any false declaration or concealment of any information made therein will attract the provisions of section 125A of 1951 Act.
Whether the petitioner by giving details in respect of fixed deposits in the Banks and omitting to give Savings Bank Deposits account numbers has fulfilled the requirements as per the prescribed column No.7 (A) in Form No.26 or concealed any information deliberately or knowingly would require proof in accordance with law and may be subjected to rebuttal evidence 42 which can be better adjudicated by the Trial Court after scanning the relevant entries in Form No.26 and the documents and the same does not come within the scope and purview of section 482 Cr.P.C.
15. In view of the aforesaid discussion, I am of the view that since at the stage of issuance of process, the Magistrate is mainly concerned with the allegations made in the complaint or the evidence laid in support of the same and he is not required to enter into a detailed discussion of the merits or demerits of the case and he is to find out only a prima facie case, it cannot be said that any illegality has been committed by the learned Magistrate in entertaining the complaint filed by the opposite party No.1 or taking cognizance of offence under section 125A of 1951 Act or issuance of process against the petitioner and therefore, I am not inclined to invoke the inherent power under section 482 Cr.P.C. to conduct a mini trial at this stage by way of marshalling and appreciating the evidence to quash the proceeding in I.C.C. Case No.565 of 2014 pending before the learned S.D.J.M., Jagatsinghpur.
Accordingly, the CRLMC petition stands dismissed.
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S. K. Sahoo, J.
Orissa High Court, Cuttack The 22nd March, 2016/Pravakar