Allowed

Nanki Ram Kanwar v. State Of Chhattisgarh and Anr.

Chhattisgarh HC6 Apr 2021CRMP/914/2015

Case brief

AI extract

What is this about?

The High Court of Chhattisgarh quashed the criminal proceedings (charge-sheet and case) against a petitioner for an alleged election offence under Section 126(2) of the RPA, 1951. The court held the offence is non-cognizable, requiring prior magistrate permission for investigation under Section 155(2) CrPC, which was absent. Additionally, the charge-sheet did not prima facie disclose an offence un

What did the court decide?

The charge-sheet filed against the petitioner and the pending Criminal Case No. 825/2014 were quashed in the interest of justice as investigation did not comply with Section 155(2) CrPC and the allega

Nanki Ram Kanwar Vs State Of Chhattisgarh and Anr. — Election Law | Chhattisgarh HC (2021)

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AFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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CRMP No. 914 of 2015

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Order reserved on 26/03/2021

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Order delivered on 06/04/2021

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Nanki Ram Kanwar, S/o Late Shri Patram Kanwar,
Aged about 72 years, Caste Kanwar, R/o Dhanuhar
Para, Purani Basti, Korba, Police Station
Kotwali, Korba, Tahsil Korba, Distt. Korba,
Chhattisgarh.

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---Petitioner

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Versus

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1. State of Chhattisgarh, Through the Superintendent of Police, Korba, Distt. Korba, Chhattisgarh.

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2. Incharge – Police Chowki, Rajgamar, Police Station Balco Nagar, Korba, Distt. Korba, Chhattisgarh.

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 --- Respondents

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For Petitioner :- Mr. Sumesh Bajaj, Advocate
For State :- Mr. Jitendra Pali, Dy. A.G.

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Hon'ble Shri Justice Sanjay K. Agrawal C.A.V. Order

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1. Petitioner herein was a contesting candidate of

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State Legislative Assembly Elections for State
Assembly Seat – Rampur, Korba held on 19/11/2013.

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He was found campaigning during the restricted
period of 48 hours prior to the result of poll on
18/11/2013 along with certain canvassing
materials (cards) pursuant to which the Returning
Officer informed the S.H.O. of Police Station
Rajgamar Chouki, Balco to take action against the
petitioner under Section 126(2) of the
Representation of the Peoples Act, 1951 (in short
“the Act of 1951”). Thereafter, on 06/12/2013,
respondent No. 2 sought permission from learned
Judicial Magistrate for filing of charge-sheet
against the petitioner for offence under Section
126(2) of the Act of 1951. Learned Judicial
Magistrate, Korba on 06/12/2013, finding that
offence under Section 126(2) of the Act of 1951
is a non-cognizable offence, permitted the S.H.O.
to file istegasha against the petitioner and
thereafter, on 27/12/2013, istegasha for offence
punishable under Section 126(2) of the Act of
1951 was filed against the petitioner and
learned trial Court has even proceeded with the
matter and charges have been framed against the
petitioner on 18/08/2015 and application under
Section 258 of CrPC was moved by the petitioner
which was rejected by the trial Court vide order
dated 12/02/2014 which was further challenged by

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the petitioner in revision but that too was
dismissed. The instant petition under Section 482
of CrPC has been preferred by the petitioner
seeking quashment of entire criminal proceeding
against the petitioner in Criminal Case No.
825/2014 (State v. NankiRam Kanwar) pending
before in the Court of Judicial Magistrate First
Class, Korba.

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2.Respondents/State has filed its return opposing
the petition stating inter alia that prima facie
petitioner has committed offence under Section
126(2) of the Act of 1951, therefore, the instant
petition, as framed and filed, is not
maintainable and it is not a case for quashing
the criminal charges framed against the
petitioner for offence under Section 126(2) of
the Act of 1951.

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3. Mr. Sumesh Bajaj, learned counsel for the petitioner, would submit that since offence under Section 126(2) of the Act of 1951 is a non-cognizable offence, no permission for

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investigation has been granted to the S.H.O.,
Police Chowki, Rajgamar, Balco under Section
155(2) of CrPC and there is no provision in the
Code of Criminal Procedure empowering Judicial

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Magistrate for granting permission to file
istegasha before the criminal Court, as such, it
is absolutely bad and without authority of law.
He would also submit that even the prosecution
has clearly stated that there is no material
available against the petitioner for offence
punishable under Section 126(2) of the Act of
1951, yet the application filed by the petitioner
under Section 258 of CrPC was rejected, as such,
the prosecution of offence under Section 126(2)
of the Act of 1951 against the petitioner be
quashed.

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4.Mr. Jitendra Pali, learned Deputy Advocate
General, would support the impugned order and
submit that petitioner has correctly been charge-
sheeted for offence punishable under Section
126(2) of the Act of 1951.

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5.I have heard learned counsel for the parties,
considered their rival submissions made herein-
above and went through the records with utmost
circumspection.

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6. Petitioner has been charge-sheeted for offence punishable under Section 126(2) of the Act of 1951. It is the allegation of respondents/State that petitioner has contravened the provisions

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contained under Section 126(1) of the Act of 1951
and therefore, he is liable for punishment under
Section 126(2) of the Act of 1951 which provides
for imprisonment for a term which may extend to
two years or fine, or both.

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7.By virtue of the First Schedule Part – II
appended with the Code of Criminal Procedure,
1973 which provides for classification of
offences against other laws and if offences are
punishable with imprisonment for less than three
years or with fine or both, the offence would be
non-cognizable and it will be bailable and
triable by any Magistrate. Thus, commission of
offence under Section 126(2) of the Act of 1951,
for which punishment prescribed is imprisonment
for two years or with fine or both, would be a
non-cognizable offence and it cannot be
investigated by a police officer without taking
permission from the Magistrate having power to
try such case under Section 155(2) or CrPC.

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8.Section 155 of CrPC provides as under :-

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“155. Information as to non-cognizable
cases and investigation of such cases. -
(1) When information is given to an officer
in charge of a police station of the
commission within the limits of such
station of a non-cognizable offence, he
shall enter or cause to be entered the
substance of the information in a book to

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be kept by such officer in such form as the
State Government may prescribe in this
behalf and refer the informant to the
Magistrate.

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(2) No police officer shall investigate a
non-cognizable case without the order of a
Magistrate having power to try such case or
commit the case for trial.

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(3) Any police officer receiving such order
may exercise the same powers in respect of
the investigation (except the power to
arrest without warrant) as an officer in
charge of a police station may exercise in
a cognizable case.

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(4) Where a case relates to two or more
offences of which at least one is
cognizable the case shall be deemed to be
cognizable case notwithstanding that the
other offences are non-cognizable.”

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9.A careful perusal of Sub-section (2) of Section

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155 of CrPC would show that the said provision
begins with the word that no police officer shall

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investigate a non-cognizable case without the
order of a Magistrate having power to try such
case, as such, the provision is explicit and
there is legislative injunction to the police
officer not to investigate any non-cognizable
offence without the order of the Magistrate
having power to try such case, and once there is

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legislative injunction to the police authority
not to investigate the non-cognizable case, it is
the duty and responsibility of the police officer

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to see that non-cognizable cases are not
investigated without express order of the

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Magistrate having jurisdiction and power to try
such non-cognizable offences.

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10.The aforesaid provision of obtaining the

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permission for investigation is a mandatory
requirement and if there is non-compliance of the
said provision, the investigation which is
carried out by the police officer would be
rendered illegal and void.

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11.In the matter of State of Haryana v. Bhajan Lal &

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Ors.1 their Lordships of the Supreme Court have
held that for the non-cognizable offence, no
investigation is permitted by a police officer
without an order of a Magistrate as contemplated
under Section 155(2) of the Code and held as
under :-

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(102) (2) Where the allegations in the
first information report and other
materials, if any, accompanying the FIR do
not disclose a cognizable offence,
justifying an investigation by police
officers under Section 156(1) of the Code
except under an order of a Magistrate
within the purview of Section 155(2) of the
Code.

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(4) Where the allegations in the FIR do not
consitute a cognizable offence but
constitute any non-cognizable offence, no
investigation is permitted by a police
officer without an order of a Magistrate as
contemplated under Section 155(2) of the
Code.”

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1 1992 Supp. (1) SCC 335

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12.In the matter of Keshav Lal Thakur v. State of

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Bihar2, their Lordships of the Supreme Court have
held that offence under Section 31 of the
Representation of the People Act, 1950 is a non-
cognizable offence and, therefore, investigation
for the said offence without order of the
competent Magistrate under Section 155(2) of the
CrPC is illegal. Relevant paragraph of the report
states as under :-

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“On the own showing of the police, the
offence under Section 31 of the Act is non-
cognizable and therefore the police could
not have registered a case for such an
offence under Section 154 CrPC. Of course,
the police is entitled to investigate into
a non-cognizable offence pursuant to an
order of a competent Magistrate under
Section 155(2) CrPC but, admittedly, no
such order was passed in the instant case.
That necessarily means, that neither the
police could investigate into the offence
in question nor submit a report on which
the question of taking cognizance could
have arisen. While on this point, it may be
mentioned that in view of the Explanation
to Section 2(d) CrPC, which defines
'complaint', the police is entitled to
submit, after investigation, a report
relating to a non-cognizable offence in
which case such a report is to be treated
as a “complaint” of the police officer
concerned, but that explanation will not be
available to the prosecution here as that
relates to a case where the police
initiates investigation into a cognizable
offence – unlike the present one – but
ultimately finds that only a non-cognizable
offence has been made out.”

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2 (1996) 11 SCC 557

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13.Now, the question whether subsequent permission,
if any, granted by the Magistrate at the time of
filing of charge-sheet, would cure illegality if
no order has been granted by the learned
Magistrate under Section 155(2) of the CrPC.

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14.The investigation of a non-cognizable offence by
the police without the permission of the
competent Magistrate is illegal, subsequent
permission granted cannot cure the illegality as
police officer has no jurisdiction to investigate
non-cognizable offence without order of the
Magistrate. (See : Siddanagouda v. State of
Karnataka3)

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15. Reverting to the facts of the case in light of the aforesaid legal position, it is quite vivid that offence under Section 126(2) of the Act of 1951, being non-cognizable offence, could not have been investigated by the Police without the order of the Magistrate or committing the case for trial and admittedly, no such permission was taken by the Police for investigation of offence under Section 126(2) of the Act of 1951 against the petitioner. The respondents/State have devised a new method altogether for chargesheeting the petitioner for the aforesaid 3 1998 Cri.L.J. 2162

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offence. On 29/11/2013, the Returning Officer
informed the Superintendent of Police, Korba that
petitioner was found campaigning during the
period of 48 hours prior to conclusion of poll
and show cause notice was also issued for the
same to the petitioner, but his reply was found
unsatisfactory, as such, legal action be taken
against him for offence punishable under Section
126(2) of the Act of 1951. Pursuant to the said
report, the S.H.O., Police Chowki, Rajgamar,
Police Station Balco Nagar, on 06/12/2013, sought
permission from learned Judicial Magistrate First
Class, Korba for filing charge-sheet against the
petitioner which was eventually granted by
learned Magistrate by order dated 06/12/2013
(Annexure P/10), which states as under :-

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“ 06@12@2013 Fkkuk ckydks iqfyl pkSdh jtxekj ds pkSdh izHkkjh eaxy /kzqo us ,d vkosnu oklrs yksd izfrfuf/kRo vf/kfu;e 1951 dh /kkjk 126 ¼2½ dk bZLrxk'kk is'k djus dh vuqefr ckcr~ izLrqr fd;kA jtxekj ds pkSdh izHkkjh eaxy /kzqo us fuosnu fd;k fd fo/kku lHkk pquko 2013 ds ernku fnol 19-11-2013ds ernku lekfIr ds iwoZ 48 ?kaVk dh dkykof/k esa pquko izpkj izfrfuf/k vof/k fnukad 18-11-2013 ds nkSjku pquko dsanz 64 xzke xqMek esa izpkj lkexzh] jaxhu QksVks ,oa pquko fpUg ;qor fcYYkk dh tIrh izs{kd rFkk lsDVj vf/kdkjh dzekad 11 jtxekj }kjk tIrh dk;Zokgh fd;k x;k gSA

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jtxekj ds pkSdh izHkkjh eaxy /kzqo us fuosnu fd;k fd mDr dR; yksd izfrfuf/kRo vf/kfu;e 1951 dh /kkjk 126 ¼2½ dk mYYk?kau ik;s tkus ij vH;FkhZ uudh jke daoj Hkkjrh; turk ikVhZ fo/kku lHkk {ks= dzekad 20 ds fo:) bZjrxk'kk is'k djus dh vuqefr iznku dh tkos D;ksafd ekeyk vlaKs; izdfr dk gSA

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bl laca/k esa muds }kjk izLrqr vkosnu] nLrkostksa] ds'k Mk;jh] tIr pquko fpUg dk ikEiysV dh Nk;kizfr ftlesa uudh jke daoj izR;k'kh gS lfgr fnukad 18-11-2013 dks fjVkZfuax vkfQlj fo/kku lHkk {ks= dzekad 20 ds izR;k'kh uudh jke

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daoj dks fn;s xs dkj.k crkvks uksfVl ,oa iapuke fnukad 22-10-2013 rFkk vuqjk/kk vxzoky uk;c rglhynkj dksjck ds i= dh Nk;kizfr lfgr fjVkZfuax vkfQlj }kjk fnukad 29-112013 dks iqfyl v/kh{kd dksjck dks fn;s i= ,oa nLrkostksa ds voyksdu i'pkr~ pawfd yksd izfrfuf/kRo vf/kfu;e 1951 dh /kkjk 126 ¼2½ vlaKs; izd`fr dk vijk/k gSA vRk% ,slh fLFkfr esa lacaf/kr Fkkuk izHkkjh dks vH;FkhZ uudh jke daoj Hkktik fo/kku lHkk {ks= dzekad 20 jkeiqj ds fo:) bZLrxk'kk is'k djus dh vuqefr iznku dh tkrh gSA

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dsl Mk;jh okil fd;k tkosA

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dksjck

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16.A careful perusal of the aforesaid order would

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show that learned Magistrate, after having held
that offence under Section 126(2) of the Act of
1951 is a non-cognizable offence, further held
that it would be appropriate to permit the
S.H.O., Police Chowki, Rajgamar, Police Station

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Balco Nagar to file charge-sheet (istegasha)
against the petitioner. In the considered opinion
of this Court, there is no provision in the Code
of Criminal Procedure empowering the Judicial
Magistrate to authorize the Police to file
charge-sheet in a non-cognizable case/offence
unless permission under Section 155(2) of CrPC
for investigation of non-cognizable case is
granted and the same is investigated in
accordance with law, which is admittedly neither
sought for nor granted in the instant case. Such
a permission authorizing the respondents/State to

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file charge-sheet for a non-cognizable offence

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under Section 126(1) of the Act of 1951 is
unknown to law and is without jurisdiction and
without authority of law and lacks legislative
sanction as well, as such, it deserves to be
quashed.

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17.There is one more reason for quashing the charge-

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sheet filed against the petitioner. At this
stage, it would be appropriate to notice Section
126 of the Representation of People Act, 1951,
which states as under :-

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“126. Prohibition of public meetings during
period of forty-eight hours ending with hour
fixed for conclusion of poll. - (1) No
person shall -

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(a) convene, hold, attend, join or address
any public meeting or procession in
connection with an election; or

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(b) display to the public any election
matter by means of cinematograph, television
or other similar apparatus; or

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(c) propagate any election matter to the
public by holding, or by arranging the
holding of, any musical concert or any
theatrical performance or any other
entertainment or amusement with a view to
attracting the members of the public
thereto,

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in any polling area during the period of
forty-eight hours ending with the hour fixed
for the conclusion of the poll for any
election in that polling area.

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(2) Any person who contravenes the
provisions of sub-section (1) shall be
punishable with imprisonment for a term
which may extend to two years or with fine,
or with both.

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(3) In this section, the expression
“election matter” means any matter intended
or calculated to influence or affect the
result of an election.”

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18.The above-stated provision was substituted by Act

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No. 21 of 1996 w.e.f. 01/08/1996 and by this
provision restriction has been proposed on
holding public meeting by all concerned. A
careful perusal of the aforesaid provision would
show that Section 126 of the Act of 1951
prohibits public meetings by one and all in any
polling area during the period of forty-eight
hours ending with the hour fixed for the
conclusion of the poll and it prohibits a person
to convene, hold, attend, join or address any
public meeting or procession in connection with
an election or display to the public any election
matter by means of cinematograph, television or
other similar apparatus or propagate any election
matter to the public by holding, or by arranging
the holding of, any musical concert or any
theatrical performance or any other entertainment
or amusement with a view to attracting the
members of the public thereto, in any polling
area during the period of forty-eight hours
ending with the hour fixed for the conclusion of
the poll for any election in that polling area.

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19.However, the allegation made against the
petitioner for commission of offence under
Section 126(2) of the Act of 1951 is contained in
the letter dated 29/11/2013 (Annexure P-7)
addressed by the Returing Officer to the
Superintendent of Police, Korba, which states as
under :-

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“ dz-@2056@lkek-fuokZ-@fo-l-pq@2013 dksjck fnukad % 29@11@2013 izfr] iqfyl v/kh{kd]

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dksjck ¼N-x-½

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fo"k; % & izfrca/k vof/k esa pquko izpkj fd;s tkus ds laca/k esa dk;Zokgh gsrqA mijksDr fo"k;kUrxZr fo/kku lHkk fuokZpu & 2013 gsrq ernku fnol fnukad 19@11@2013 dks ernku lekfIr ds iwoZ 48 ?kaVks dh dkykof/k esa pquko izpkj izfrcaf/kr gSA bl izfrcaf/kr vof/k ds nkSjku fnukad 18@11@2013 dk s fo/kku lHkk {ks= dz- 20&jkeiqj ¼v-t-tk-½ ds vUrxZr ernku dsanz dzekad&34 xzke xksMek esa izpkj lkexzh jaxhu QksVks ,oa pquko fpUg ;qDr fcYYkk ¼dkMZ ds leku½ izs{kd egksn; dh mifLFkfr esa tIr fd;k x;k gS] mDr dk;Zokgh dk izfrosnu] iapukek lfgr lsDVj vf/kdkjh dz- 11 jtxekj }kjk izLrqr fd;k x;k gSA vH;FkhZ }kjk fd;k x;k mDr d`R; yksd izfrfuf/kRo vf/kfu;e 1951 dh /kkjk 126 ¼[k½ ds varxZr izfrcaf/kr gS rFkk yksd izfrfuf/kRo vf/kfu;e 1951 dh /kkjk 126 ¼2½ ds izko/kku ds varxZr n.Muh; gSA rRlaca/k esa fnukad 18@11@2013 dks vH;FkhZ dks dkj.k crkvks uksfVl tkjh dj 48 ?kaVs esa tokc ekaxk x;k Fkk] vH;FkhZ }kjk fnukad 21@11@2013 dks tokc izLrqr fd;k x;k gS] tks lek/kkudkjd ugh gSA vr% vH;FkhZ Jh uudh jke daoj] Hkkjrh; turk ikVhZ- fo-l-{ks= dz- 20&jkeiqj] irk&/kuokj ikjk] jkuh jksM] dksjck ¼N0x0½ ds fo:) yksd izfrfuf/kRo vf/kfu;e 1951 dh /kkjk 126 ¼2½ ds izko/kku ds vUrxZr oS/kkfud dk;Zokgh dj v/kksgLrk{kjdrkZ dks voxr djkosaA

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layXu %& nLrkostA

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fjVfuZax vkWfQlj

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fo/kkulHkk {ks= dz-20&jkeiqj ¼v-t-tk-½

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20.From a careful perusal of the aforesaid memo, it

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is quite clear that there is no such allegation

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in the charge-sheet that petitioner has
convened, held, attended, joined or addressed any
meeting in public place or procession in
connection with the election or displayed to the

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public any election matter by means of
cinematograph, television or other similar
apparatus or propagated any election matter to
the public by holding, or by arranging the
holding of, any musical concert or any theatrical
performance or any other entertainment or
amusement with a view to attracting the members
of the public and as such, taking the contents of
the charge-sheet as it is in its face value and
accepted in its entirety, the only allegation
against the petitioner is that on 18/11/2013 at
Village Gudma, Polling Centre No. 64, petitioner

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being a contesting candidate, he was found in
possession of election canvassing material and
was further found campaigning for his election
which is electoral offence under Section 126(2)

¶103

of the Act of 1951. Thus, in light of
sub-paragraph (1) of paragraph 102 of the law
laid down by their Lordships of the Supreme Court
in Bhajan Lal(supra), in the considered opinion
of this Court, the allegations of the charge-

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sheet taken as it is, does not prima facie

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constitute offence under Section 126(1) of the
Act of 1951 against the petitioner and as such,
the istegasha filed against the petitioner under
Section 126(2) of the Act of 1951 deserves to be
quashed in exercise of power conferred under
Section 482 of CrPC in the interest of justice.

¶107

21.Consequently, the charge-sheet filed against the
petitioner, being in violation of the provisions
contained under Section 155(2) of CrPC and also
on merit, is hereby quashed as taking the
contents of the charge-sheet as it is, no offence
under Section 126(2) of the Act of 1951 is made
out against the petitioner. Accordingly, Criminal
Case No. 825/2014 (State v. NankiRam Kanwar)
pending in the Court of Judicial Magistrate First
Class, Korba deserves to be and is hereby
quashed.

¶108

22.The instant petition under Section 482 of CrPC is
allowed to the extent indicated herein-above. No
cost(s).

¶109

Sd/(Sanjay K. Agrawal) Judge

¶110

Harneet

Nanki Ram Kanwar v. State Of Chhattisgarh and Anr.

Case brief

What is this about?

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Nanki Ram Kanwar v. State Of Chhattisgarh and Anr.

Case brief

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What the court decided

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