ABDUL AZEEZ ,A. Vs. NISSAM,M.

JUDGEMENT

(1.) PETITIONER , an accused in a pending case before the Judicial First Class Magistrate Court-II, Kollam, has filed the above petition under Section 482 of the Code of Criminal procedure, for short, the 'Code'. Criminal proceedings against him on Annexure I complaint filed by 1st respondent are an abuse of process of the court and it is liable to be quashed invoking the inherent powers of this Court, is his case.

(2.) PETITIONER /accused contested as a candidate in the General Election held to the Kerala Legislative Assembly in 2011. He then suppressed true facts about his educational qualifications, knowing fully well what was stated is false, according to complainant. Petitioner had furnished incorrect and false statements regarding his educational qualifications in the affidavit sworn to and produced with his nomination paper, is the case of complainant to prosecute him for offences punishable under Section 125-A of the Representation of the People Act, 1951, for short, the 'Act', and Sections 171G, 193, 198 and 199 of the Indian Penal Code, for short, the 'IPC'.

(3.) I heard the counsel on both sides. Learned counsel for petitioner Sri.K.Jagadeesachandran Nair contending that the allegations raised in the complaint do not make out any offence, even prima facie, under the Act or the IPC, to proceed against the accused, submitted the Magistrate has gone wrong in passing Annexure II order for issuing process to the accused. Previously, the complainant had filed a writ petition before this Court against the order of Returning Officer declining to take action on his complaint raising similar allegations over the particulars furnished in the affidavit when petitioner contested the election in 2006, and that was dismissed by Annexure III judgment. Challenge in the writ petition against the order of Returning Officer was founded on similar allegations mooted in the present complaint and, when that be so, the decision rendered in Annexure III judgment against the writ petitioner/complainant is conclusive and final, according to the counsel. A fresh complaint before the Magistrate (Annexure I) in such circumstances would not lie and, therefore, cognizance taken of the offences on such complaint by the Magistrate is unsustainable and the entire proceedings are liable to be quashed, submits the counsel. Allegations raised in the complaint, it is submitted, relate to commission of offences three years prior to its presentation before the court and as such prosecution sought thereof is hopelessly barred under Section 468 of the Code, according to the counsel. Further more, the allegations raised in the complaint do not show that the petitioner had any guilty intention or knowledge while he furnished his educational qualifications in the affidavits submitted with his nomination papers when he contested election on two different occasions, according to counsel. When such be the case, the criminal proceedings launched against the petitioner under Annexure I complaint is nothing but a vexatious prosecution having no merit or legal basis and it cannot be permitted to be continued, is the submission of counsel urging for quashing such proceedings. Per contra, learned counsel for complainant Sri.Kaleeswaram Raj contended that the verdict entered in his writ petition under Annexure III judgment would no way interdict or bar the prosecution of petitioner for the offences alleged under Annexure I complaint. Annexure III judgment does not amount to a discharge or acquittal of the accused and it was confined to the challenge against the decision of Returning Officer declining to act upon the representation made by complainant in accordance with law, more particularly, under the provisions of the Act, submits the counsel. Order of Returning Officer was challenged in a writ petition, and, Annexure III judgment was rendered holding that it was not a case for exercise of extraordinary jurisdiction, according to the counsel, would no way bar the writ petitioner, present complainant, in filing a complaint before the Magistrate to prosecute the petitioner for offences committed by him under the IPC and the Act. Learned counsel for complainant relied on Institute of Chartered Accountants of India v. Vimal Kumar Surana and Another ((2011) 1 SCC 534) and Sangeetaben Mahendrabhai Patel v. State of Gujarat and another ((2012) 7 SCC 621) to contend that no question of double jeopardy or issue estoppel would arise in the given facts of the case by virtue of Annexure III judgment rendered in the writ petition as there was no trial, prosecution, acquittal or discharge of petitioner earlier and further the offences imputed under Sections 193, 198 or 199 of the IPC are not electoral offences but distinct and different offences the ingredients to constitute which are entirely different from electoral offences. Prosecution of petitioner for offences against public justice contemplated under the above Sections of the IPC is no way barred at any rate by Annexure III judgment rendered in the writ petition filed by the complainant earlier is the further submission of the counsel. Now, the Magistrate on the materials placed, both oral and documentary evidence tendered by complainant, has formed a conclusion that a prima facie case has been made out to proceed against the accused, for various offences under the Penal Code and the Act, and cognizance thereof taken and process ordered to the accused, according to the counsel, what, if any, is the relevance of Annexure III judgment would arise for consideration only in the trial of the case. Where Annexure III judgment cannot preclude taking of cognizance and trial of offences imputed in Annexure I complaint, and, its value or merit is a matter to be considered if relevant at a later stage. It cannot be pressed into service to assail the cognizance taken and process ordered to accused, submits the counsel. Incorporation of a separate and distinct offence under Section 125-A of the Act will have no impact over prosecution of an offender when the allegations imputed in relation to an election in the complaint would also constitute penal offences under Sections 193, 198 and 199 of the IPC, submits the counsel. The offences under Sections 193, 198 and 199 of the IPC are offences against public justice and as such even if the allegations thereof have some nexus with 'the electoral offence' there could be no bar to prosecute the offender for such offences as well, according to counsel. Adverting to the punishment provided for the offence under Section 193 of the IPC, learned counsel submitted there is no merit in the challenge made that the complaint is barred under Section 468 of the Code.