NANKI RAM KANWAR Vs. STATE OF CHHATTISGARH

JUDGEMENT

(1.) Petitioner herein was a contesting candidate of State Legislative Assembly Elections for State Assembly Seat Rampur, Korba held on 19/11/2013. He was found campaigning during the restricted period of 48 hours prior to the result of poll on 18/11/2013 along with certain canvassing materials (cards) pursuant to which the Returning Officer informed the S.H.O. of Police Station Rajgamar Chouki, Balco to take action against the petitioner under Section 126(2) of the Representation of the Peoples Act, 1951 (in short "the Act of 1951"). Thereafter, on 06/12/2013, respondent No. 2 sought permission from learned Judicial Magistrate for filing of charge-sheet against the petitioner for offence under Section 126(2) of the Act of 1951. Learned Judicial Magistrate, Korba on 06/12/2013, finding that offence under Section 126(2) of the Act of 1951 is a non-cognizable offence, permitted the S.H.O. to file istegasha against the petitioner and thereafter, on 27/12/2013, istegasha for offence punishable under Section 126(2) of the Act of 1951 was filed against the petitioner and learned trial Court has even proceeded with the matter and charges have been framed against the petitioner on 18/08/2015 and application under Section 258 of CrPC was moved by the petitioner which was rejected by the trial Court vide order dated 12/02/2014 which was further challenged by the petitioner in revision but that too was dismissed. The instant petition under Section 482 of CrPC has been preferred by the petitioner seeking quashment of entire criminal proceeding against the petitioner in Criminal Case No. 825/2014 (State v. NankiRam Kanwar) pending before in the Court of Judicial Magistrate First Class, Korba.

(2.) Respondents/State has filed its return opposing the petition stating inter alia that prima facie petitioner has committed offence under Section 126(2) of the Act of 1951, therefore, the instant petition, as framed and filed, is not maintainable and it is not a case for quashing the criminal charges framed against the petitioner for offence under Section 126(2) of the Act of 1951.

(3.) Mr. Sumesh Bajaj, learned counsel for the petitioner, would submit that since offence under Section 126(2) of the Act of 1951 is a non-cognizable offence, no permission for investigation has been granted to the S.H.O., Police Chowki, Rajgamar, Balco under Section 155(2) of CrPC and there is no provision in the Code of Criminal Procedure empowering Judicial Magistrate for granting permission to file istegasha before the criminal Court, as such, it is absolutely bad and without authority of law. He would also submit that even the prosecution has clearly stated that there is no material available against the petitioner for offence punishable under Section 126(2) of the Act of 1951, yet the application filed by the petitioner under Section 258 of CrPC was rejected, as such, the prosecution of offence under Section 126(2) of the Act of 1951 against the petitioner be quashed.