VIJAY ANAND Vs. STATE OF BIHAR

JUDGEMENT

(1.) HEARD counsel for the petitioner and the State. The opposite party No. 2 has not chosen to appear despite service of notice on him on 31.1.2007 vide flag 'A ' of the service report.

(2.) IN this application the petitioner has made a prayer for quashing the entire proceeding in Complaint Case no. 271 of 2006. including the order dated 18.7.2006 passed by the Addl. Chief Judicial Magistrate, Naugachia, directing the police, under Section 156(3) of the Code of Criminal Procedure, to institute the case and investigate the same on the basis of a complaint petition filed by the opposite party no. 2. Learned counsel for the petitioner has submitted that the allegation made in the petition of complaint is out and out a civil dispute arising out of the election of Gram Panchayat and therefore whether a false affidavit was given and was accepted by the petitioner in exercise of his official power in the capacity of Returning Officer on the basis of the report of the Officer -in -Charge, the same cannot be made a subject matter of criminal case. He further contends that there are specific provision in the Constitution of India as well as in the Gram Panchayat Act prohibiting any court to deal with the dispute relating to the election. In this context learned counsel for the petitioner has placed reliance on Article 243 -0(b) of the Constitution of India wherein it has been provided that no election to any Panchayat shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any Law made by the Legislature of a State. He has further placed reliance on Section 138(Kha) of Gram Panchayat Act wherein it has been provided that the election of a Panchayat will not be called in question except by an election petition presented before the prescribed authority. Learned counsel has also referred to Sections 136 and 137 to explain that any dispute relating to election can be only looked into under the aegis of Gram Panchayat Act itself.

(3.) LEARNED counsel further submits that even if the facts as alleged in the complaint petition is accepted to be true, it will be at best constitute an offence under Section 171(g) of the Indian Penal Code inasmuch as it has been provided therein whoever with intent to affect the result of an election makes or publishes any statement purporting to be a statement of fact which is false and which he either knows or believes to be false or does not believe to be true, in relation to the personal character or conduct of any candidate shall be punished with fine. He further contends that on the face of Section 171(g) of the Indian Penal Code, it cannot be even remotely suggested that the alleged offence in the complaint petition such as Sections 406, 420, 457, 458, 471 and 120(b)/34 of the Indian Penal Code could be made out specially when all that has been alleged that the successful candidate in the election of Panchayat whose nomination paper was declared to be valid by the petitioner had some criminal antecedent and yet the petitioner either negligently or collusively accepted the false affidavit of such candidate that he had no criminal antecedent. Learned counsel in this context had also referred that such acceptance of the character and criminal antecedent of the successful candidate was not at his own instance but was based on the report of the concerned Officer -in -Charge who was the only person from whom the petitioner in the capacity of the Returning Officer had called for the report with regard to the criminal antecedent of the petitioner and consequently had placed reliance while declaring the nomination paper to be valid.