Judgment · High Court

WP(C) 3227/2008 BEFORE HON’BLE MR JUSTICE H N SARMA Heard Mr N Choudhury, learned counsel for the petitioner, Mr MU Mamud, learned S C for the Election Commission and Mr AS Choudhury, learned senior counsel for th e respondent No 7. Challenge made in this writ petition is the order dated 19.7.2008 passed and sig ned on 23.7.2008(sic) passed by the State Election Commission setting aside the election of the petitioner and declaring the private respondent No 7, Md Abdul R ashid, as elected as a member of the 59, Hatimuria Gaon Panchayat under No 3 Moi rabari Anchalik Panchayat further directing the Superintendent of Police Morigao n to register a case against the petitioner and her propser in the nomination pa per, complete the investigation by seizing all the connected records from the De puty Commissioner’s office and to submit the charge sheet in the Court within a month from the date of issue of the order.

Mr Choudhury strenuously submits that the aforesaid order passed by the State El ection Commission is absolutely without any jurisdiction and it is nothing but an usurpation of power. In this connection, he referred to a decision of this Co urt reported in 1995 (2) GLT 152. Vide order dated 30.7.2008, the learned standing counsel was directed to obtain instruction and to produce the records. In the meantime the private respondent No 7 has entered appearance through Mr AS Choudhury, learned senior counsel. Both the learned standing counsel and for th e respondent No 7 have submitted that on an application filed by the petitioner for review of the impugned order, the matter has been taken up again for review by the Commission and in the process the impugned order challenged in this writ petition has been stayed and the whole matter is fixed on 17.8.2008 for re-heari ng. On going through the impugned order and upon hearing the learned counsel for the parties, I find that the State Election Commission has no authority vested on h im by any law to direct the investigating officer to submit charge sheet against the petitioner under the Criminal Procedure Code, it is functional duty of the investigating officer, if after investigation a prima facie case is found again st an accused to file a charge sheet, otherwise not.

In the event the investiga ting agency does not find any prima facie case against the accused, after invest igation certainly final report under section 173, CrPC, would be filed. Accordingly, in my view, the State Election Commission has exceeded its jurisdic tion in making such direction. As regards the other part of the main matter is p ending for review before the State Election Commission with an interim stay. Mr Choudhury submits that the State Election Commission has no jurisdictional a uthority to decide such matter as the Commission has become functus officio afte r the election is over. This point is left to be decided by the Commission itsel f on the date fixed for hearing of the review. It is made clear that the petitioner would be entitled to raise before the State Election Commission all these points including the jurisdiction of the Commissi on which are agitated before this Court in this writ petition.

In making such su bmission by the petitioner it would not amount to be submission on the jurisdict ion and the Commission shall decide the points raised by the petitioner, first and then in the event of necessity would go on the merit. With the aforesaid observation and direction this writ petition stands disposed of.