Criminal Petition No. 2756 of 2024 · The High Court
Case Details
1 Reserved on : 05.12.2024 Pronounced on : 07.03.2025 R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 07TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR. JUSTICE M. NAGAPRASANNA CRIMINAL PETITION No.2756 OF 2024 C/W WRIT PETITION No.7458 OF 2024 (GM - RES) IN CRIMINAL PETITION No.2756 OF 2024 BETWEEN: SMT. MANJULA S., @ MANJULA LIMBAVALI W/O SRI ARAVIND LIMBAVALI AGED ABOUT 48 YEARS OCC: MLA, ADDRESS: NO.06, RENUKA NILAYA, 9TH CROSS, ANNAYAPPA COLONY NEW THIPPASANDRA, HAL 3RD STAGE, BENGALURU – 560 075. (BY SRI VENKATESH P.DALWAI, ADVOCATE) ... PETITIONER 2 AND: SRI NAGESH T., @ NALLURHALLI NAGESH S/O LATE THIPPAIAH, AGED ABOUT 50 YEARS, ADDRESS: NO.39, LUMBINI VICTORIAN LAYOUT NALLURHALLI, WHITEFIELD POST BENGALURU – 560 066. (BY SRI RANGASWAMY B., ADVOCATE) ... RESPONDENT THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C., PRAYING TO SET ASIDE THE ORDER DATED 05.03.2024 PASSED BY THE LEARNED 42ND A.C.M.M BENGALURU (SPL.COURT FOR TRIAL OF CASES FILED AGAINST SITTING AS WELL AS FORMER MPs/MLAs TRIABLE BY MAGISTRATE IN THE STATE OF KARNATAKA) (PCR NO.1835/2024) CONSEQUENTLY QUASH ENTIRE PROCEEDINGS ON ITS FILE FOR THE OFFENCES P/U/S 125-A OF REPRESENTATIVE OF PEOPLES ACT 1951, PRODUCED AT ANNEXURE-A. IN CC..NO.7393/2024 IN WRIT PETITION No.7458 OF 2024 BETWEEN: DR. SHAILENDRA BELDALE S/O SRI KASHINATH BELDALE, AGED ABOUT 49 YEARS, RESIDING AT NO.350, CHITTAWADI VILLAGEWADI VILLAGE, BIDAR TALUK, BIDAR DISTRICT – 585 403. (BY SRI M.B.NARGUND, SR.ADVOCATE FOR SRI GOURISH SUBHASH, ADVOCATE) ... PETITIONER 3 AND: SRI RAJKUMAR MADKI S/O SRI BASAPPA MANHALLI, AGED ABOUT 46 YEARS, RESIDING AT MANHALLI, BIDAR, KARNATAKA – 585 403. ... RESPONDENT (BY SRI PRABHULING K.NAVADGI, SR.ADVOCATE FOR SRI ASHWIN C., ADVOCATE) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA READ WITH SECTION 482 OF CR.P.C., PRAYING TO i) TO CALL FOR THE ENTIRE RECORDS PERTAINING TO THE CC NO. 29813/2023 ON THE FILE OF THE 42ND ADDL. C.M.M. 42ND ADDL. C.M.M. (SPECIAL COURT FOR TRAIL OF CASE AGAINST SITTING AS WELL AS FORMER MPS/MLAS, TRAILABLE BY MAGISTRATE IN THE STATE OF KARNATAKA) AT BENGALURU; ii) SET ASIDE THE ORDER OF TAKING COGNIZANCE AND ISSUING SUMMONS DATED 30/09/2023 IN PCR NO.9254/2023 VIDE ANNEXURE – A AND 24/11/2023 IN PCR NO.9254/2023 VIDE ANNEXURE - B RESPECTIVELY, PASSED BY THE 42ND ADDL. C.M.M. (SPECIAL COURT FOR TRAIL OF CASES AGAINST SITTING AS WELL AS FORMER MPS/MLAS, TRAILABLE BY MAGISTRATE IN THE STATE OF KARNATAKA) AT BENGALURU AND ETC., 4 THESE PETITIONS HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 05.12.2024, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:- CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA CAV ORDER Both these petitions, though by different petitioners in different criminal cases, are tagged together on the score that they project one and the same legal issue. In Writ Petition 7458 of 2024 the petitioner calls in question proceedings in C.C.No.29813 of 2023 registered for offences punishable under Section 125A of the Representation of People Act, 1951 (hereinafter referred to as ‘the Act’ for short). In Criminal Petition No.2756 of 2024 the petitioner calls in question proceedings in C.C.No.7393 of 2024 again for offence punishable under Section 125A of the Act. Therefore, the common string in these petitions is the offence alleged – Section 125A of the Act.
Legal Reasoning
driven the petitioner to this Court in the subject petition. 4. Learned senior counsel Sri M.B. Nargund appearing for the petitioner in the writ petition would project a threshold bar of maintenance of the complaint itself. It is his contention that if the complaint has to be registered for filing false affidavit, a private person cannot do so. It is the Election Commission alone which has a right to file a complaint for offence under Section 125A of the Act. He would seek to place reliance upon several judgments and also literature from Anthropological book on election laws of India penned by V.S. Rama Devi, the consideration of which would happen in the course of the order qua its relevance. The learned counsel would also submit on merits of the matter that the petitioner is a resident of Chitta village itself and take this Court through the voter identity for the last three elections to buttress his submission. In all he would seek quashment of the proceedings before the concerned Court. 8 5. The learned counsel Sri Venkatesh P Dalwai appearing for the petitioner in the criminal petition would toe lines of the learned senior counsel for the petitioner in the companion petition. Insofar as merit of the matter is concerned, the learned counsel would contend that the affidavit was not false. The children of the petitioner are not dependent; they are income tax assessees and are having their own business. Therefore, the dependents column is left as nil. Insofar as non-mentioning of the firm, the learned counsel would submit that the firm is a body corporate and it is not a proprietorship concern of the petitioner to make a mention of it in the assets and liabilities statement. In all he would seek quashment of the crime. 6. Per contra, learned senior counsel Sri Prabhuling K.Navadgi
Arguments
2. Heard in W.P.No.7458 of 2024 Sri M.B. Nargund, learned senior counsel appearing for the petitioner and Sri Prabhuling K. 5 Navadgi, learned senior counsel appearing for the respondent and in Criminal Petition No.2756 of 2024 Sri Venkatesh P. Dalwai, learned counsel appearing for the petitioner and Sri B. Rangaswamy, learned counsel appearing for the respondent. 3. Facts, in brief, germane are as follows:- In W.P.No.7458 of 2024: The petitioner is a sitting Member of the Legislative Assembly from Bidar South constituency having contested the same on three elections in 2013, 2018 and 2023. The issue is while filling up nomination papers, the petitioner contesting from Bidar South constituency had given his residential address as residing in No.350 of Chittawadi Village. On 29-03-2023 when the elections were notified, the petitioner filed his nomination along with two affidavits as a candidate from Bharatiya Janata Party (‘BJP’). The Returning Officer accepts the affidavit on 21-04-2023. The results were declared and the petitioner comes out as a returned candidate of BJP from Bidar South constituency. On 21-08-2023 a complaint is registered by the respondent invoking Section 200 of the Cr.P.C., 6 alleging that the petitioner has filed a false affidavit that he is a resident of Chitta Village of Bidar District, while he is not. The concerned Court on 30-09-2023 takes cognizance of the offence under Section 125A of the Act and posts the matter for recording of sworn statement. The sworn statement comes to be recorded on 24-11-2023 and summons were issued to the accused. The petitioner/accused, on receipt of summons, is at the doors of this Court in the present petition. In Crl.P.No.2756 of 2024: The petitioner contested the State Assembly Elections in the year 2023 for the Mahadevapura (SC) Constituency-174. The petitioner wins the election and comes out as a returned candidate. The respondent loses the election to the petitioner and then registers a crime invoking Section 200 of the Cr.P.C., for offence punishable under Section 125A of the Act. The allegation in the complaint is concealment of a property owned by a firm in which the petitioner was a partner and dependents column being left blank in the nomination papers. The concerned Court takes cognizance of the offence on 13-02-2024 and issues summons on 7 05-03-2024 to the petitioner. Issuance of summons is what has
Decision
appearing for the respondent in the writ petition would vehemently contend that filing of false affidavit would touch upon deceit of the public by people’s representative. Purity in contest of elections is the most necessary concomitant of free and fair elections. The petitioner is admittedly not a resident of Chitta village but is a resident of Bidar. He has contested elections from Chittapur. He 9 shows himself to be a resident of Chittapur. He has played fraud on the people. Therefore, trial must ensue. Insofar as the contention of maintainability of the complaint by a private person, the learned senior counsel would seek to place reliance upon several judgments, all of which would bear consideration qua their relevance. He would contend whether the petitioner is a resident of Chitta village or otherwise; whether the petitioner has declared all the assets or his children were income tax assessees is all a matter of trial, in which the petitioner has to come out clean. They are in the realm of seriously disputed questions of fact. If this Court would hold the complaint to be maintainable by a private party and not the Election Commission for the aforesaid offence, the rest would become a matter of evidence. Therefore, the only issue is with regard to maintainability of the complaint by a private person for offence punishable under Section 125A of the Act. The learned counsel appearing for the respondent in the criminal petition would adopt in toto the submissions of the learned senior counsel in the companion petition. 10 7. I have given my anxious consideration to the submissions made by the respective learned senior counsels and other learned counsels and have perused the material on record. 8. The afore-narrated facts are a matter of record. The threshold bar in the case at hand, as projected by the learned counsel for the petitioner is, maintainability of the complaint before the concerned Court by a private individual. It is only if this Court would hold that it is maintainable, it would consider merit of the matter. Therefore, I deem it appropriate to consider the contention of threshold bar at the first instance. Section 125A of the Act reads as follows: “125-A. Penalty for filing false affidavit, etc.—A candidate who himself or through his proposer, with intent to be elected in an election,— (i) fails to furnish information relating to sub-section (1) of Section 33-A; or (ii) gives false information which he knows or has reason to believe to be false; or (iii) conceals any information, in his nomination paper delivered under sub-section (1) of Section 33 or in his affidavit which is required to be delivered under sub-section (2) of Section 33-A, as the case may be, shall, notwithstanding anything contained in any other law 11 for the time being in force, be punishable with imprisonment for a term which may extend to six months, or with fine, or with both.” Section 125A comes into the statute book by Act 72 of 2002 with effect from 24-08-2002. It punishes a candidate who himself or through his proposer furnishes false information and gives such information which he knows or reasons to believe is false and conceals any information. The allegation against these petitioners is furnishing of false information while filing the affidavits as candidates in the 2023 elections to the Karnataka Legislative Assembly. The facts and allegations may be manifold. Who can register the complaint is what is necessary to be noticed. 9. The offence gets triggered in a nomination filed before the Returning Officer for the purpose of contesting the elections. Section 125 of the Act, as it stood then, had a clause of making false declaration. Section 125A comes in 2002 as observed hereinabove. Therefore, certain literature about it in the book ‘How India Votes’ would become germane to be noticed. It reads as follows: 12 “31. Making false declaration. – If any person makes in connection with: (a) (b) The preparation, revision or correction of an electoral roll, or The inclusion or exclusion of any entry in or from an electoral roll, A statement or declaration in writing which is false and which he either knows or believes to be false or does not believe to be true, he shall be punishable with imprisonment for a term which may extend to one year or with fine, or with both. Comments. – The offence under S.31 is non-cognisable. For detailed discussion on the provisions of this section, see ‘False Declarations in Connection with Electoral Rolls’ in ch.7. 32. Breach of official duty in connection with preparation, etc, of electoral rolls, - (1) If any electoral registration officer, assistant electoral registration officer or other person required by or under this Act to perform any official duty in connection with the preparation, revision or correction of electoral roll or the inclusion or exclusion of any entry in or from the roll, is without reasonable cause, guilty of any act or omission in breach of such official duty, he shall be punishable with imprisonment for a term which shall not be less than three months but may extend to two years and with fine. (2) No suit or other legal proceeding shall lie against any such officer or other person for damages in respect of any such act or omission as aforesaid. (3) No court shall take cognisance of any offence punishable under sub-section (1) unless there is a complaint made by order of, or under authority from, the Election Commission or the Chief Electoral Officer of the State concerned. … …. … 13 125A. Penalty for filing false affidavit, etc.- A candidate who himself or through his proposer, with intent to be elected in an election – (i) (ii) fails to furnish information relating to sub-section (1) of Section 33A; or gives false information which he knows or has reason to believe to be false; or (iii) conceals any information. In his nomination paper delivered under sub-section (1) of Section 33 or in his affidavit which is required to be delivered under sub-section (2) of Section 33A, as the case may be, shall, notwithstanding anything contained in any other law for the time being in force, be punishable with imprisonment for a term which may extend to six months, or with fine, or with both. Comments. – The Election Commission has clarified to the returning officer that the nomination paper of a candidate shall not be rejected solely on the ground that the candidate has given any wrong information or suppressed any material information in his affidavit. If any such defect or discrepancy is brought to the notice of the returning officer, he shall file a complaint before the competent magistrate under S.195 CrPC for violation of the present S.125A and S.177 IPC.” It is elucidated in the comment section that the Election Commission has clarified to the Returning Officer that the nomination paper shall not be rejected solely on the ground that the candidate has given any wrong information or suppressed any material information in his affidavit. If any such defect or discrepancy is brought to the notice of the Returning Officer, he 14 shall file a complaint under the provisions of law for the offence punishable under Section 125A or Section 177 of the IPC. The learned senior counsel for the respondents has relied on several judgments to contend that this Court has considered and held that Section 125A of the Act can be complained of by any private individual. 10. A coordinate Bench of this Court in the case of RAGHUNATH VISHWANATH DESHPANDE v. STATE OF KARNATAKA1, has held as follows: “Petitioner has filed this petition under Articles 226 and 227 of the Constitution of India r/w Section 482 of Cr.P.C., seeking following reliefs:— a. Issue writ in the nature of Certiorari or any other appropriate writ, order or direction quashing the complaint dated 20.01.2014 in bearing PCR No. A/2014 on the file of the Hon'ble Principal Judicial filed by Magistrate Fast Track Court, Haliyal Respondent No. 2 under Section 200 of the Code of Criminal Procedure for offences punishable under Sections 171(g), 177, 181, 182, 199, 420, 465, 467 and 468 of the Penal Code, 1860 (Annexxure - A). b. Issue writ in the nature of Certiorari or any other appropriate writ, order or direction quashing of order dated 20.01.2014 passed by the Hon'ble Principal JMFC, Haliyal in PCR No. 4/2014, inter-alia directing investigation under Section 156(3) of Criminal 1 2015 SCC OnLine Kar 9709 15 Procedure Code, 1973 and referring the complaint for investigation and report to CPI, Haliyal (Annexure - B). c. Issue writ in the nature of Certiorari or any other appropriate writ, order or direction quashing order dated 18.08.2014 passed by the Hon'ble Principle Civil Judge JMFC, Haliyal in PCR No. 4/2014 directing the 1st Respondent to investigate the matter and submit the report by 19.09.2014 (Annexure - C). 2. The respondent No. 2-Jayanth MukundhTenaiker claiming to be the social worker, filed a complaint under Section 200 of Cr.P.C. against the petitioner in PCR No. 4/2014 on the file of Principal JMFQ Haliyal on 20.01.2014 for the offences punishable under Sections 171(g), 177, 181, 182, 189, 420, 467 and 468 of IPC. The sum and substance of the allegations made in the complaint are that the petitioner made false declaration in the affidavit filed in Form No. 26 as provided under Section 33(A) of the Representation of People Act, 1951, while submitting his nomination papers to the Returning Officer, while contesting election for the Karnataka Legislative Assembly from Haliyal Assembly Constituency in Uttara Kannada District, for the elections held in the year 2004, 2008 and 2013. 3. The learned Magistrate received the complaint on 20.01.2014 presented by the complainant and passed the following order: “Complainant present. Refer the matter to CPI, Haliyal under Section 156(3) of Criminal Procedure Code for investigation and report. Call on 28.02.2014.” … … … 6. The learned counsel appearing the petitioner has vehemently submitted before me that respondent No. 2 who is claiming to be the social worker has no locus standi to file the complaint for the for 16 the nomination papers. The offences punishable under Sections 171(g), 181, 182 and 199 of IPC having regard to the nature of allegations made in the complaint. It is for the Returning Officer to file the complaint, if he satisfied that a false affidavit in Form No. 26 is filed while submitting learned counsel submitted that there is no material in the complaint to speak about the ingredients of offences under Sections 420, 465, 467 and 468 of IPC in as much as the complaint for the offences under Sections 420, 465, 467, and 468 is not maintainable for want of sanction under Section 197 of Cr.P.C. It is further submitted learned Magistrate Without applying the mind to the allegations made in the complaint mechanically referred the complaint under Section 156(3) of Cr.P.C. like a post office. Further, it is submitted that the complaint is not accompanied by an affidavit of the complaint which is mandatory so also the complaint is not accompanied by a sanction order under Section 197 of Cr.P.C. which is a pre- condition. Under such circumstances, the continuation of the proceedings in furtherance of the said complaint would amount to abuse of process of law and hence the learned counsel sought to quash the entire proceedings. The learned counsel placed reliance on the following decisions to buttresses his arguments:— that the 1. 2. 3. 4. 5.
Decision
O R D E R (i) Writ Petition No.7458 of 2024 & Criminal Petition No.2756 of 2024 are allowed. (ii) Proceedings in C.C. No.29813 of 2023 and C.C.No. 7393 of 2024 pending before the XLII Additional Chief Metropolitan Magistrate (Special Court for trial of cases against sitting as well as former MPs/MLAs, triable by Magistrate in the State of Karnataka), Bengaluru stand quashed. (iii) It is open to the complainants to avail of any other available remedy in law, if so advised. 32 Consequently, I.A.No.1 of 2024 filed in W.P.No.7458 of 2024 stands disposed. Sd/- (M. NAGAPRASANNA) JUDGE bkp CT:MJ