GANESH KUMAR Vs. RAJU

JUDGEMENT

(1.) Petitioner is the accused in a complaint filed by 1st respondent. Cognizance taken for the offence under S. 193 of the Indian Penal Code, for short, the 'IPC' on such complaint Magistrate ordered process to him. Petitioner has filed the above petition challenging that order, for quashing the complaint and criminal proceedings against him, as an abuse of process of the court under S. 482 of the Code of Criminal Procedure, for short, the 'Code'. Annexure-I is copy of the complaint. Case of the complainant, in short, is that petitioner has given false particulars over his educational qualification in the affidavits filed by him when he contested the election on three different occasions, in 2001, 2006 and 2011, from Pathanapuram Constituency; in two publications, viz., "12th Kerala Legislative Assembly "WHO's WHO", published by Research Section, Secretariat of the Kerala Legislature in May, 2007 and, "Legislatures of Kerala" published by Secretariat of the Kerala Legislature in the year 2006; and, also, in his website in which his biography is published. Regarding his educational qualifications in the affidavits and publications made, he has given different versions, in some of them as a 'B.Com. graduate" and in some others "Course Completed" and, thereby, he has committed the offences under Ss. 191 and 193 of the I.P.C. is the case of complainant to prosecute the petitioner for such offences. Learned Magistrate recording the sworn statement of complainant and perusing the documents produced took cognizance of the offence under S. 193 of the I.P.C. and ordered process to the accused. Annexure-II is copy of that order. Petitioner/accused seeks quashing of the criminal proceedings against him invoking the inherent powers of this Court. With the petition, he has filed some documents as Annexure-I to Annexure-V.

(2.) The 1st respondent in the petition, hereinafter referred to as the "complainant" resisting the petition has filed an affidavit with some documents marked as Annexures R1(a) to R1(f).

(3.) Learned senior counsel Sri. K. Ramakumar appearing for petitioner contended that cognizance taken of the offence on the complaint is illegal since it is vitiated by the bar under S. 195(1)(b)(i) of the Code. In relation to an affidavit sworn to and placed with a nomination paper if false particulars are made in such affidavit, then, the authority to file a complaint thereof can only be the Returning Officer and a complaint by a third party as in the present case is clearly barred, is the submission of counsel. At best on the allegations imputed a complaint for offence under S. 125A of the Act alone would lie, and its prosecution can be made only by a Returning Officer is the submission of counsel. Reliance is placed on an unreported decision rendered by this Court in a Writ Petition (W.P. (C). No. 29574 of 2008), producing a copy of the judgment as Annexure-III. Complaint does not contain the essential ingredients to constitute the offence under S. 193 of the I.P.C. which was taken cognizance by Magistrate, and, the allegations set out in the complaint clearly demonstrate that entertain ability of that complaint is barred by limitation is the further submission of counsel. The above offence is imputed for giving false evidence by filing an affidavit containing false particulars, with nomination paper and then, at the worst it would fall only under second part of 193 I.P.C. giving false evidence in a case other than judicial proceeding, and it is punishable only upto a claim of three years, submits the counsel. A complaint filed in 2011 raising allegations over the filing of an affidavit containing false particulars with a nomination paper in 2006, to prosecute the accused, is clearly barred by limitation under S. 468 of the Code, is the submission of counsel. Adverting to S. 33-A of the Representation of the People Act, 1951, for short, the 'Act', it is contended by counsel that information to be furnished by a candidate with his nomination paper is only those covered by the Act and Rules, and as such, prosecution of a candidate with respect to any statement relating to his 'educational qualification' even if the same is wrong, though it was directed to be furnished as per the notification issued by the Election Commission pursuant to directions of the Apex Court cannot be a ground to prosecute the accused for the offence under S. 193 of the I.P.C. Reference is also made by counsel to R.4-A of the Conduct of Election Rules, 1961 and Form 26 provided under the above Rules to buttress the argument that supply of information by candidate which is not mandatorily required by 'Act' and 'Rules' cannot give rise to his prosecution for a penal offence on the ground that information supplied over such matters otherwise directed was incorrect, inaccurate or even false. Learned counsel for petitioner relied on Lucy Joseph v. Elikutty James,2009 2 KerLT 92 to contend that incorrect furnishing of particulars of educational qualification would not render Form 2A a fake as at the most it would amount only to a defect in such Form. Reliance is also placed on Harshendra Kumar D. v. Rebatilata Koley & Ors, 2011 1 KerLT 732 and Sushil Suri v. Central Bureau of Investigation & Anr.,2011 2 KerLT 113) that in order to prevent injustice or abuse of process or to promote justice, High Court may look into the materials which have significant bearing on the matter at prima facie stage and where it is shown that the proceedings commenced against the accused person is barred under law or an abuse of process of the court, it is liable to be quashed invoking the inherent powers the court. Per contra, learned senior counsel Sri. Ranjith Thampan appearing for respondent/complainant adverting to the allegations raised in the complaint submitted that cognizance taken by Magistrate to proceed against the accused ordering process to him for the offence under S. 193 of the I.P.C. is unassailable, and, exercise of inherent powers of this Court to quash such proceedings is not allowable. Insistence of furnishing relevant information by candidates contesting election has been mandatorily prescribed under the notification issued by the Election Commission, and it was pursuant to directions given by Apex Court in two decisions, namely, Union of India v. Association for Democratic Reforms, 2002 2 KerLT 72) and People s Union for Civil Liberties v. Union of India,2003 1 KerLT 94), is banked upon by the counsel to contend that there is no merit in the submission made that there is no statutory prescription compelling a candidate to furnish information in his affidavit with the nomination true particulars of his educational qualifications. Furnishing of such information is one among the five matters insisted upon and, in fact, mandatorily directed by the Apex Court in the aforesaid decisions and that has been subsequently prescribed by issuing a notification by the Election Commission as well, submits the counsel. When that be so, it is a mandatory prescription and non-compliance thereof or furnishing false particulars of educational qualification by a candidate is a penal offence, for which he is liable to be prosecuted, according to the counsel. A provision has been made under S. 125-A of the Act to treat it as an electoral offence no way exclude the culpability of the offender for the offence under S. 193 of the I.P.C. as well when ingredients thereof are also satisfied in relation to the false affidavit filed, is the further submission of the counsel to contend that there is no merit in the challenge raised that the offence would fall only under S. 125- A of the Act. Learned counsel also submitted that challenge raised that a prosecution can be launched only by the Returning Officer and not by a voter or any other person and there is a bar under S. 195(1)(b)(i) of the Code in filing the complaint and cognizance taken by Magistrate is totally unworthy of any merit. There is no such interdiction under law, is the submission of counsel asserting that cognizance taken of the offence in the complaint is perfectly legal and it has to be proceeded further to reach its logical conclusion. No ground whatsoever has been made to quash the criminal proceedings arising from the complaint in exercise of inherent powers of this Court, and petition is only to be dismissed is the submission of counsel for complainant.