SURESHWAR SARAN Vs. STATE OF BIHAR

JUDGEMENT

(1.) After describing the order dated 20-11-1978 (Annexure '2'), (hereinafter referred to as, the impugned order') as illegal and without jurisdiction, the petitioner who is a Subdivisional Officer. Rohtas Sadar, has sought for the quashing of the criminal proceeding initiated against him in Complaint Case no. 493 of 1978, Nagendra Nath Sinha v, S. S. Sinha 'Macrand', pending in the court of Shri S. N. Mahto, Judicial Magistrate at Sassaram.

(2.) Oppisite-party No. 2 of this application, who filed the instant complaint in the Court of Chief Judicial Magistrate, Sassaram, and one Shri Kamal Bahadur were, the two contestants for the post of chairmanship of Sassam Municipality. This gave rise to the decision as to who should be a successful candidate by lots, as Rule 70 of the Bihar Municipal Elections and Election Petitions Rules, 1953 (hereinafter referred to "the Rules". This Rule further provides that if the number of votes recorded for each of the candidates who obtain the least number of votes is equal, one of those candidates shall be eliminated by drawing lots in such manner as the Returning Officer may determine. Instead of deciding the lot by tossing the coin, the petitioner decided the same by means of slips, as referred to in the petition at page 3, in which Shri Kamal Bahadur was declared as elected. It is in this background that the unsuccessful candidates, Shri Nagendra Nath Sinha, filed the instant complaint against the petitioner, who in his capacity as Sub Divisional Officer acted as the Returning Officer for the said election alleging offences under Sections 166 and 167 of the Indian Penal Code.

(3.) On receipt of the complaint, the complainant was examined on solemn affirmation by the Chief Judicial Magistrate and the case was transferred by him to one Shri S. N. Mahto, Judicial Magistrate, Sasaram, under Section 192 (1) of the Code of Criminal Procedure (hereinafter referred to as 'the Code') for enquiry and trial and he ordered for the records being put up to him on 6-12-1978. Before the records could be put up before Sri S. N. Mahto, on 5-12-197S itself the petitioner rushed to this Court and filed the instant application under Section 482 of the Code, invoking the inherent jurisdiction of this Court to quash the criminal proceeding initiated against him.