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TMI Blog2020 (9) TMI 1160X X X X Extracts X X X X X X X X Extracts X X X X ..... f the requisition sent by the Investigating Officer. The same has been passed after the Investigating Officer having referred the Informant to the Magistrate, who having enquired with the Informant passed the order. Whether the complaint as regards violation of Section 123(3) of the Representation of Peoples Act, 1951 is limited to the candidate or does it extend to any third party? - Whether the violation of Section 123(3) of the Representation of Peoples Act, 1951 would amount to a penal offence making such person liable for criminal prosecution? - Whether promotion of enmity or hatred is a sine qua non for invoking section 125 of the Representation of Peoples Act, 1951 - HELD THAT:- With the advent of democracy and the election process there have been several aspects relating to the elections, which have resulted in litigations. With the passage of time, laws have been evolved to regulate the electoral system. These electoral laws are aimed at maintaining a level playing field, so no one gets an undue advantage over the same - Various laws over a period of time have restrained or regulated various actions on the part of the candidate or his agent or representatives. Ge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h injury of any kind or induces or attempts to induce a candidate or voter to believe that he or any person in whom he is interested will become or will be rendered an object of divine displeasure or spiritual censure - That means to say that there have to be statements made or threat given to a voter that if he were to vote in any particular manner, he may incur displeasure of the divine or censure by spiritual censure. Unless these two ingredients are satisfied, there cannot be undue influence said to be used and therefore an offence under Section 171F could not be said to be committed - As regards undue influence, if it is to be contended that the speech of the Petitioner amounted undue influence it has to satisfy the dual requirement under Section 171C of the IPC. An ex-facie reading of the complaint does not make any allegation to satisfy the requirement of Section 171C of the IPC. Thus, when the basic requirement is not fulfilled, the criminal law cannot be set in motion, as regards an action, which does not amount to a penal offence. Thus, in the present case on the basis of the allegation made in the complaint it cannot be prima facie concluded that the Petitioner has co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons to a accused, who is not residing within its jurisdiction? - HELD THAT:- No such summons could be issued without first examining the complainant and his witness if any on oath in terms of Section 200 of the Cr.P.C. Since in the present case, the Petitioner is not resident within the territorial jurisdiction of the Magistrate, the above procedure ought to have been complied with - The registration of complaint and issuance of summons to the accused is violative of Section 202(1) and 202(1) proviso (b) of the Cr.P.C. 11.5. The question that would arise in regard to the above contention is what is the enquiry that the Magistrate would have to conduct. There would have to be an order passed under Section 202(1) of the Cr.P.C. to indicate as to why process is being issued by the Magistrate to an accused who is not residing within the jurisdiction of that Court and for this purpose, sworn statement of the complainant as also the affidavit evidence if any of the complainant's witnesses could be recorded leading to an order by the Magistrate based on his satisfaction that there are sufficient grounds for issuing summons to such accused residing outside its jurisdiction. Such order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .C. ) in the above proceedings 1.3. quashing the order of taking cognisance and issuance of summons dated 26.06.2020 in the above proceedings and 1.4. consequently quash the entire and all further proceedings in the said matter. 2. The facts, in brief, are that: 2.1. One Laxman Allapur (informant), Executive Engineer, Karnataka Niravari Nigama was deputed on election duty as a Flying Squad by the District Election Officer, Belagavi for Gokak Constituency Bye-Elections. He had filed a complaint before the respondent No.1-Police on 26.11.2019, alleging that on 23.11.2019 between 5:00 to 6:40 p.m., while he along with one M.G.Uppar were on election duty in Valmiki Stadium, the Petitioner who was campaigning for the BJP Candidate had appealed in his speech that the Veerashaiva Lingayat Community Members vote must be consolidated, that they should not be divided and called upon the members to vote in favour of the said candidate. 2.2. This is stated to be in violation of the Election Code of Conduct, and as such, he requested respondent No.1-Police to take action against the Petitioner. 2.3. Respondent No.1-Police registered a non-cognisable case in N.C.No.24/2019 unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. The first informant had thereafter sought for permission for registering the case and carrying out the investigation. 2.9.3. That there was an appeal made by the Petitioner in the video recording of the speech to a specific community seeking their votes in favour of the candidate of Gokak Constituency. 2.10. The Magistrate was of the opinion that the B-report could not be accepted, there was enough material in the form of video recording indicating, prima facie, the commission of the offence as alleged, rejected the B-report. 2.11. The Magistrate came to the conclusion that there was enough material in the B-report to proceed against the Petitioner and subject the Petitioner to trial for the offences punishable under Section 123(3) of the R.P. Act and Section 171F of the IPC proceeded the take cognisance of the offences, after rejecting the B-report and directed the registration of the criminal case against the Petitioner. The Magistrate also directed the issuance of summons against the Petitioner through the Commissioner of Police, Bengaluru. 3. It is aggrieved by the above that the Petitioner has filed the above petition seeking for reliefs as aforestated. 4. Sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to lodge a complaint under Section 200 Cr.P.C., when the Magistrate would apply his mind to the averments in the complaint and on being satisfied that there are reasons to believe that a non-cognisable offence is committed may direct investigation by the jurisdictional Police. In any event, such a power cannot be exercised either arbitrarily or capriciously and must result in a judicial order. The judicial order does not mean extracting the entire text of the complaint and the evidence adduced before the Magistrate. What is required by law is application of mind to the material on record, satisfy himself that there is a need to investigate into the commission of the non-cognisable offence. It is only thereafter that the Magistrate under sub-Section (2) of Section 155 Cr.P.C., 1973 directs the Police Officer to investigate into the non-cognisable as otherwise, the Police Officer has no power to investigate into such an offence. Sub-Section (3) of Section 155 Cr.P.C., 1973 requires the Police Officer who receives the order of Magistrate, to exercise the same power in respect of investigation (except the power to arrest without warrant) as the officer may exercise in a cognisable case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng enmity, a reading of the complaint in its entirety indicates that even an offence under Section 125 of the R.P. Act has not been alleged to have been committed. Therefore, there is no Electoral Offence which can be alleged to have been committed by the Petitioner. Section 171F of the IPC 4.9. That Section 171F of the IPC is also not attracted since the same relates to punishment for undue influence or personation in an election, there is no personation committed by the Petitioner. As regards undue influence, there is no undue influence exercised by the Petitioner so as to warrant invocation of Section 171F of the IPC, since the requirement of undue influence as mandated under Section 171C of the IPC are not satisfied. Hence, there is no offence, which could be said to have been committed under Section 171F of the IPC. He submitted that the proceedings are required to be quashed. Violation of Procedure to be followed on receipt of B Report 4.10. That the Magistrate has not followed the procedure to be followed upon receipt of B-report, the Magistrate ought to have issued notice to the complainant-the first Informant seeking for his acceptance or objection to the B- repor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce of the offence, order an investigation under Sec. 156(3). The Police will then investigate and submit a report under Sec. 173(1). On receiving the police report the Magistrate may take cognisance of the offence under Sec. 190(1)(b) and straightaway issue process. This he may do irrespective of the view expressed by the Police in their report whether an offence has been made out or not. The Police report under Sec. 173 will contain the facts discovered or unearthed by the Police and the conclusion drawn by the Police therefrom. The Magistrate is not bound by the conclusions drawn by the Police and he may decide to issue process even if the Police recommend that there is no sufficient ground for proceeding further. The Magistrate after receiving the Police report, may, without issuing process or dropping the proceeding decide to take cognisance of the offence on the basis of the complaint originally submitted to him and proceed to record the statements upon oath of the complainant and the witnesses present under Sec. 200 Criminal Procedure Code and thereafter decide whether to dismiss the complaint or issue process. The mere fact that he had earlier ordered an investigation under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cognisance, only prima facie case has to be seen by the Court. But the argument would be fit for rejection since it is nothing but mixing up two different and distinct nature of cases as the principle and procedure applied in a case based on Police report which is registered on the basis of First Information Report cannot be allowed to follow the procedure in a complaint case. A case based on a complaint cannot be allowed to be dealt with and proceeded as if it were a case based on Police report. 29. While in a case based on Police report, the Court while taking cognisance will straightaway examine whether a prima facie case is made out or not and will not enter into the correctness of the allegation levelled in the F.I.R., a complaint case requires an enquiry by the Magistrate under Section 200 Cr.P.C. if he takes cognisance of the complaint. In case he refuses to take cognisance he may either dismiss the complaint or direct the investigating agency to enter into further investigation. In case, he does not exercise either of these two options, he will have to proceed with the enquiry himself as envisaged and enumerated under Section 200 Cr.P.C. But, he cannot exercise the four ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the Magistrate has not followed the procedure as contained under Section 202(2) of the Cr.P.C. for issuance of summons to the Petitioner, who admittedly is residing, outside the jurisdiction of the Magistrate, which is clear from the fact that the Magistrate has directed the Commissioner of Police, Bengaluru to serve the summons on the Petitioner. No enquiry having been held by the Magistrate to arrive at a conclusion that sufficient cause is made out to issue such notice. The issuance of summons being contrary to Section 202(2) of the Cr.P.C., the same is required to be quashed. 4.17. That before issuance of summons to the Petitioner, the Magistrate ought to have come to a conclusion that there are sufficient grounds for issuance of such summons and in that regard, necessary procedure thereto as laid down by the various decisions of the Hon'ble Apex Court had to be followed. In this regard he relied on 4.18. Udai Shankar Awasthi Vs. State of Uttar Pradesh and another reported in (2013)2 SCC 435, more particularly, paragraph No.40 thereof, which is reproduced hereunder for easy reference,: 40. The Magistrate had issued summons without meeting the mandatory requirem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the issue of process, if in the opinion of the Magistrate taking cognisance of an offence, there is sufficient ground for proceeding. This Section relates to commencement of a criminal proceeding. If the Magistrate taking cognisance of a case (it may be the Magistrate receiving the complaint or to whom it has been transferred under Section 192), upon a consideration of the materials before him (i.e., the complaint, examination of the complainant and his witnesses if present, or report of inquiry, if any), thinks that there is a prima facie case for proceeding in respect of an offence, he shall issue process against the accused. 52. A wide discretion has been given as to grant or refusal of process and it must be judicially exercised. A person ought not to be dragged into Court merely because a complaint has been filed. If a prima facie case has been made out, the Magistrate ought to issue process and it cannot be refused merely because he thinks that it is unlikely to result in a conviction. 53 However, the words sufficient grounds for proceeding appearing in the Section are of immense importance. It is these words which amply suggest that an opinion is to be formed o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have not been made out. 4.24. On all these grounds, the petition is to be allowed and the reliefs as prayed for therein ought to be granted. 5. Shri V.M. Sheelavant, learned Special Public Prosecutor for respondent No.1 submitted that 5.1. The entire procedure as required has been followed and there are serious allegations made against the Petitioner, it cannot at this stage be contended that there are no offences made out against the Petitioner. The same requires a proper and complete trial to be conducted; 5.2. The Magistrate having come to the conclusion that there is prima facie case, this Court therefore at this stage ought not to quash the complaint pending trial in the matter, which would establish whether the offences have been committed or not. 5.3. Though the offences complained of against the Petitioner is under Section 123 of the R.P Act 1951, it does not debar the prosecution of the Petitioner. 5.4. The offence alleged relating to an election, it is, but required that the same is looked at in a larger conspectus so as to preserve the dignity and veracity of an election. 5.5. He therefore submitted that the petition requires to be rejected. 6. On ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isable offences or as a corollary to it, it is only the informant/complainant, who is to seek permission for investigation from the Magistrate? 7.1. It would be profitable to refer to and extract Section 155 of the Cr.P.C., which reads as under: 155. Information as to non-cognisable 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- cognisable offence, he shall enter or cause to be entered the substance of the information in a book to be kept by such officer in such form as the State Government may prescribe in this behalf, and refer the Informant to the Magistrate. (2) No police officer shall investigate a non- cognisable case without the order of a Magistrate having power to try such case or commit the case for trial. (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 cognisable case. (4) Where a case relates to two or more offences of which at least one is cognisable, the case s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owered in this behalf under sub-section (2), may take cognisance of any offence-- (a) upon receiving a complaint of facts which constitute such offence; (b) upon a police report of such facts; (c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed. (2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognisance under sub-section (1) of such offences as are within his competence to inquire into or try 7.6. In the present case, the complaint has been filed by any other person relating to a non- cognisable offence , hence the same would have to be treated as a private complaint, in terms of Section 200 of the Cr. P.C and procedure thereunder required to be followed. Section 200 of Cr. P.C is reproduced hereunder for easy reference. 200. Examination of complainant.- A Magistrate taking cognisance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... offence and for further investigation. I am satisfied to grant permission to I.O., for investigation of the above said non-cognisable offence. Hence, in view of the same, proceed to pass the following; ORDER In exercise of Sec.155(2) of Cr.P.C. the Investigating Officer of Gokak Town P.S. Gokak is accorded with permission for investigation of the said non-cognisable offence and to file report. Intimate this order to said I.O., along with the copy of this order forthwith. 7.10. The Magistrate enquired with the Informant, perused the requisition and found that there is a prima facie case made out, requiring permission to be granted for investigation. 7.11. Even otherwise, since the Informant herein is a public servant acting or purporting to act in the discharge of his official duties as belonging to the flying squad deputed by the Election Commission, there was no need for sworn statement of the Informant to be recorded, since the Provisio to section 200 exempts the same. 7.12. In the above circumstances, it cannot be said that the order permitting the investigation has been passed only on the basis of the requisition sent by the Investigating Officer. The sam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at an election, or (b) an elector to vote or refrain from voting at an election, or as a reward to-- (i) a person for having so stood or not stood, or for [having withdrawn or not having withdrawn] his candidature; or (ii) an elector for having voted or refrained from voting; (B) the receipt of, or agreement to receive, any gratification, whether as a motive or a reward-- (a) by a person for standing or not standing as, or for [withdrawing or not withdrawing] from being, a candidate; or (b) by any person whomsoever for himself or any other person for voting or refraining from voting, or inducing or attempting to induce any elector to vote or refrain from voting, or any candidate [to withdraw or not to withdraw] his candidature. Explanation.--For the purposes of this clause the term gratification is not restricted to pecuniary gratifications or gratifications estimable in money and it includes all forms of entertainment and all forms of employment for reward but it does not include the payment of any expenses bona fide incurred at, or for the purpose of, any election and duly entered in the account of election expenses referred to in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i or its glorification by a candidate or his agent or any other person with the consent of the candidate or his election agent for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate. Explanation.--For the purposes of this clause, sati and glorification in relation to sati shall have the meanings respectively assigned to them in the Commission of Sati (Prevention) Act, 1987 (3 of 1988).] (4) The publication by a candidate or his agent or by any other person with the consent of a candidate or his election agent], of any statement of fact which is false, and which he either believes to be false or does not believe to be true, in relation to the personal character or conduct of any candidate, or in relation to the candidature, or withdrawal, 3* * * of any candidate, being a statement reasonably calculated to prejudice the prospects of that candidate's election. (5) The hiring or procuring, whether on payment or otherwise, of any vehicle or vessel by a candidate or his agent or by any other person 4[with the consent of a candidate or his election agent], 6[or the use of such vehicle or vessel for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppointed or deputed by the Election Commission in connection with the conduct of elections. Provided that where any person, in the service of the Government and belonging to any of the classes aforesaid, in the discharge or purported discharge of his official duty, makes any arrangements or provides any facilities or does any other act or thing, for, to, or in relation to, any candidate or his agent or any other person acting with the consent of /the candidate or his election agent (whether by reason of the office held by the candidate or for any other reason), such arrangements, facilities or act or thing shall not be deemed to be assistance for the furtherance of the prospects of that candidate's election; 8) booth capturing by a candidate or his agent or other person.] Explanation.--(1) In this section, the expression agent includes an election agent, a polling agent and any person who is held to have acted as an agent in connection with the election with the consent of the candidate. Explanation.--(2) For the purposes of clause (7), a person shall be deemed to assist in the furtherance of the prospects of a candidate's election if he acts as an election agent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e candidate or his agent or representatives. Generally speaking, any violation of these electoral laws was regarded to be corrupt practices. Essentially any corrupt practices used by the candidate to get an unfair advantage would result in disqualification of the candidate. 8.5. The Government of India Act, 1919, for the first time introduced the concept of corrupt practices, which was in essence based on the British Act of 1883, with slight modification, next came the Indian Election Offences and Enquiries Act, 1920, by virtue of which certain amendments, more particularly to Section 171 of the IPC, were brought about. Thus, starting the prosecution for corrupt practices; finally the above culminated in the Representation of People Act, 1951, which is the pre-eminent law applicable to and regulates all the aspects of an election. 8.6. The R.P. Act has distinguished any violation of the R.P. Act into corrupt practices and/or electoral offences. The difference being that for corrupt practices, any person claiming a candidate to be involved in such corrupt practices has to approach appropriate Election Commission seeking for disqualification of the candidate if such a candidate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... undue influence, which requires direct or indirect interference or an attempt to interfere on the part of the candidate or his agent, with the consent of the candidate or his election agent with the free exercise of any electoral right. Provided that a threat has been held out to any candidate or an elector or any other person in whom a candidate or an elector is interested, with an injury of any kind including social ostracism and ex-communication or expulsion from any caste or community or induces such a candidate or an elector to believe that he, or any person in whom he is interested, will become or will be rendered an object of divine displeasure. Thus, Section 123(2) of the R.P. Act, there is a restrictive interpretation of undue influence, without the requirement of the provisio being fulfilled it cannot be said that there is undue influence. 8.12. Section 123(3) of the R.P. Act deals with any appeal by a candidate or his agent or by any other person with the consent of a candidate or his election agent to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language or the use of, or appeal to religious symbols or the use o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a concise statement of the material facts on which the petitioner relies; (b) shall set forth full particulars of any corrupt practice that the petitioner alleges, including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice; and (c) shall be signed by the petitioner and verified in the manner laid down in that Code of Civil Procedure, 1908 (5 of 1908) for the verification of pleadings: Provided that where the petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof. (2) Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition. 84. Relief that may be claimed by the petitioner.-- A petitioner may, in addition to claiming a declaration that the election of all or any of the returned candidates is void, claim a further declaration that he himself or any other candidate has been duly elected. 100. Grounds for declaring election to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n-- (a) that in fact the petitioner or such other candidate received a majority of the valid votes; or (b) that but for the votes obtained by the returned candidate by corrupt practices the petitioner or such other candidate would have obtained a majority of the valid votes, the High Court shall after declaring the election of the returned candidate to be void declare the petitioner or such other candidate, as the case may be, to have been duly elected. 8.15. The R.P Act does not contemplate any action against the agent or any other person, who is acting with the consent of the candidate. As stated above, any action for violation of Section 123 of the R.P. Act leads back only to the candidate, if proved resulting in disqualification of the candidate or voiding the result of the election. 8.16. Similar provisions as under Section 123(2) and (3) of the R.P. Act are not available under Chapter III Part VII relating to Electoral Offenses. There is no provision which makes a corrupt practice under Section 123(2) or (3) of the R.P. Act as an offence under the said Chapter. Thus, no criminal prosecution can be laid on account of the violation of Section 123 of the R.P. Act ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder Section 125 having been committed. 8.22. It is trite law that if there is a violation of Section 123 or if there is a corrupt practice, the same would only result in a proceedings under the R.P. Act for disqualification of the candidate or for voiding the result of the election in the event of such candidate having returned successful and not for the prosecution of the candidate or his agent or a person authorised by him for any penal offence. 8.23. Hence I answer the above points by holding that: 8.24. An action on a complaint as regards violation of Section 123 of the Representation of Peoples Act, 1951 , i.e., on account of a corrupt practice being committed is limited to the candidate, resulting in his disqualification or voiding of his/her result in the event of such candidate having returned successfully. 8.25. An action for violation of Section 123 of the Representation of Peoples Act, 1951, can only be initiated against the candidate seeking for his/her disqualification and voiding of his/her result in the event of such candidate having returned successfully, hence no action can be taken against the agent or a person authorised by him for such corrupt pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l not be deemed to be interference within the meaning of this section.] Sections 171D 171D. Personation at elections.--Whoever at an election applies for a voting paper or votes in the name of any other person, whether living or dead, or in a fictitious name, or who having voted once at such election applies at the same election for a voting paper in his own name, and whoever abets, procures or attempts to procure the voting by any person in any such way, commits the offence or personation at an election: [Provided that nothing in this section shall apply to a person who has been authorised to vote as proxy for an elector under any law for the time being in force in so far as he votes as a proxy for such elector. Sections 171F 171F. Punishment for undue influence or personation at an election.--Whoever commits the offence of undue influence or personation at an election shall be punished with imprisonment of either description for a term which may extend to one year or with fine, or with both. CLASSIFICATION OF OFFENCE Para I Punishment- Imprisonment for 1 year, or fine, or both-Non-Cognisable-Bailable- Triable by Magistrate of the first class-Non-compoundable. Para II ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o a penal offence. 9.9. Hence I answer this point by holding that in the present case on the basis of the allegation made in the complaint it cannot be prima facie concluded that the Petitioner has committed an offence under Section 171F of the IPC by exercising undue influence on the persons who had gathered for an election rally in terms of Section 171C of the IPC. 10. Point Nos. (vi) and (vii): (vi) What is the procedure to be followed by the Magistrate when a B-report is filed? Can a Magistrate suo moto reject the B-report without notice being ordered on the complainant? (vii) Whether the Magistrate can suo moto take cognisance of the offence without the issuance of notice to the complainant? 10.1. Both the points being related to each other are taken up for consideration together. 10.2. As held by the Apex Court in the cases reported in H.S.Bains, Director, Small Saving-Cum- Deputy Secretary Finance, Punjab, Chandigarh (supra) and Vasanti Dubey (supra), relevant paragraphs having been extracted hereinabove; the Magistrate had the following three options, after completion of the investigation and the Police having submitted a B-report namely: i. If he agree ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the B-report and has taken cognisance of the alleged offence suo moto, such a procedure is neither contemplated nor sanctioned under the provisions of Criminal Procedure Code. 10.5. The Hon'ble Apex Court has in the aforesaid decisions clearly stated about the procedure to be followed in order to safeguard the interest of parties; these safeguards not having been followed by the Magistrate, the rejection of the B-report and taking cognisance of the offences without service of notice on the complainant and/or objection on the part of the complainant is not sustainable. 10.6. Be that as it may. Even if the complainant filed objections or questioned the B report, for the Magistrate to take cognisance of offences, there should be an offence prima facie made out under Section 125 of the R.P. Act or Section 171F of IPC. 10.7. As held above, no criminal prosection can be laid for violation of Section 123 of the R.P. Act. As answered to the points above, I am of the considered opinion that the complaint as such does not make out any case under Section 125 of the R.P. Act or Section 171F of IPC. Thus the question of setting the criminal law into motion on the basis of the compl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the above contention is what is the enquiry that the Magistrate would have to conduct. There would have to be an order passed under Section 202(1) of the Cr.P.C. to indicate as to why process is being issued by the Magistrate to an accused who is not residing within the jurisdiction of that Court and for this purpose, sworn statement of the complainant as also the affidavit evidence if any of the complainant's witnesses could be recorded leading to an order by the Magistrate based on his satisfaction that there are sufficient grounds for issuing summons to such accused residing outside its jurisdiction. Such order not having been passed by the magisterate, the summons could not have been so issued. Point No.(viii) is answered accordingly. 12. Point No.(ix): (ix) Whether the Magistrate could have at the stage of taking congnizance relied upon the video recording in a compact disk, without it being accompanied by a certificate under Section 65-B of the Indian Evidence Act? 12.1. Shri C.V. Nagesh, learned Senior Counsel submitted that the compact disk could not have been referred to by the Magistrate in the absence of a certificate under Section 65-B of the Indian Evid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant were to be a public servant acting or purporting to act in the discharge of his official duties. 14.5. An action on a complaint as regards violation of Section 123 of the Representation of Peoples Act, 1951, i.e., on account of a corrupt practice being committed is limited to the candidate, resulting in his disqualification or voiding of his/her result in the event of such candidate having returned successfully. 14.6. An action for violation of Section 123 of the Representation of Peoples Act, 1951, can only be initiated against the candidate seeking for his/her disqualification and voiding of his/her result in the event of such candidate having returned successfully, hence no action can be taken against the agent or a person authorised by him for such corrupt practice in terms of section 123 of the Representation of Peoples Act, 1951. 14.7. Violation of Section 123 of the Representation of Peoples Act, 1951 in the present scheme of the legislation would amount to corrupt practice, providing a cause of action for filing of an election petition under Section 81 read with Section 100 and 101 of the Representation of Peoples Act, 1951; there can be no penal action initiated ..... X X X X Extracts X X X X X X X X Extracts X X X X
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