sIN THE HIGH COURT OF JUDICATURE AT PATNA Election Petition No.1 of 2011 =========================================================== Naiyar Azam, son of Late Suffi Kadri, resident of village-Sakri, P.O. & P.S.-Sakri, District-Madhubani. .... .... Election-Petitioner. Versus Sri Ram Deo Mahto, son of Ram Ratan Mahto, resident of village-Kasiyauna, P.O.& P.S -Raj Nagar, District-Madhubani. .... .... Respondent. =========================================================== Appearance : For the Petitioner/s : M/s-Shashi Bhushan Kumar Mangalam & Anita Kumari For the Respondent/s : M/s-Pramod Kumar Mishra, Ghanshyam & Usha Rai =========================================================== CORAM: HONOURABLE MR. JUSTICE NAVANITI PRASAD SINGH ORAL JUDGMENT Date: 14-05-2012 By this election petition, the election petitioner challenges the election of the respondent to the 15th Bihar Legislative Assembly from 36, Madhubani General Assembly Constituency for which elections were held on 21.10.2010. Pursuant to notices issued parties have appeared, issues were framed and witnesses examined. Parties agreed that the primal issue in the present matter was whether non-disclosure of pending criminal investigation would amount to suppression of material fact in relation to criminal cases and, that being so, would disqualify the person so elected. The case of the petitioner as projected by the evidence was that the contesting respondent had been made an accused in a case and criminal investigations were on and it was known to everybody as the said news was published in various newspapers of the locality as well, but he, the respondent had deliberately not disclosed the same on affidavit as he was required to do while he filed his nomination paper. The facts in this regards as stated in the nomination paper were appended as Annexures-3&4 to the election petition which have not Patna High Court E.P. No.1 of 2011 dt.14-05-2012 - 2 - been disputed by the respondent. The prescribed formats are appended to the election petition are Annexures-1&2 respectively. Initially the defence of the contesting respondent through his witnesses was that they were unaware of the news item in the newspaper, though they admitted that the said newspaper had circulation in the locality. The last witness to be examined on behalf of the respondent was the contesting respondent himself. In his examination-in-chief and in cross-examination, he took stand that he had declared all information that he was required to declare by law. He had not concealed any material information. He stated that as the concerned case was still under investigation, he was not bound by law to disclose the same. He also mentioned that in fact, after completion of investigation, the police submitted final form reporting it to be a mistake of fact which was accepted by the Court. The Court never took cognizance of the said offence. At this stage, it was pointed out and the Court verified that what was the nature of information that was required to be disclosed and what was the information to be disclosed. This as agreed by the learned counsels was the primal issue. If we look to the statutory form, as appended to the election petition being Annexures-1&2, the information with regard to the pending cases relate to specifically the cases in which the Court had taken cognizance; cases which were pending criminal trial; cases in which convictions have been ordered and cases which were pending in criminal appeal. The statutory form refers to technical term “in which cases cognizance has been taken”, “in cases in which conviction has been ordered”, “cases in which appeals or trials are pending”. Thus, the Patna High Court E.P. No.1 of 2011 dt.14-05-2012 - 3 - framers of the statutory forms were fully conversant and cognizant of the technical word used by them. Mr. S.B.K. Mangalam, learned counsel for the election-petitioner does not dispute the fact that the non-disclosure by the respondent was in relation to a case which had been instituted as an F.I.R. before the police and in which case, on the date when the nomination was filed, investigations were still pending. Investigation had not been concluded and no chargesheet having been filed, the Court was in no position to take cognizance. On these facts, prima facie, it is clear that there was no suppression of material facts at the behest of the respondent. However, Mr. Mangalam submitted that this first information report was not registered by the police on its own. Upon a complaint having been made to the Chief Judicial Magistrate, Madhubani, in exercise of powers conferred to him under Section-156 (3) of the Code of Criminal Procedure, the Magistrate referred the same to the police for needful action, i.e., investigation. Mr. Magalam further submits that this act of Magistrate would amount to an order taking cognizance and, that being so, even during course of investigation it would amount to a case in which the Court had taken cognizance and respondent was duty bound to disclose the same. This is the sole contention urged. Having heard the parties and considered the matter, in my view, the submission is misconceived and has been noted only to be rejected. Order taking cognizance or for that matter cognizance has not been statutorily defined under the Code of Criminal Procedure. Simply and judicially understood, order taking cognizance means where Patna High Court E.P. No.1 of 2011 dt.14-05-2012 - 4 - the Magistrate applies his mind to the facts of the case with intent to proceed with it. This is the distinction between Section-192 and Section-156 (3) of the Code of Criminal Procedure where a Magistrate transfers the complaint to another Magistrate for enquiry and trial. He has applied his mind to the facts of the case for the purposes of proceeding with it, in stead of himself enquiring and trying the matter he transfers it to another Magistrate of competent jurisdiction. Thus, he is said to have taken cognizance in the matter. But, when the Magistrate refers the matter to the police in terms of Section-156 (3) of the Code of Criminal Procedure he does not do so to proceed with it but leaves it to the police to investigate and submit a report to the Court in the shape of chargesheet or the final form as the case may be. He does not take cognizance of the offence. He applies his mind only upon receipt of the chargesheet or the final form as the case may be upon receipt of either. If he decides to proceed with the matter he takes cognizance. Prior to that, it is only investigation at the hands of the police. It is neither enquiry nor trial. I may only refer to a recent decision of the Apex Court in the case of Mona Panwar versus High Court of Judicature of Allahabad through its Registrar and others since reported in (2011) 3 Supreme Court Cases 496 wherein this distinction between Sections- 156 (3), 200 and 202 of the Code of Criminal Procedure has been noticed and explained in detail. The view that I have taken finds full support from the said judgment. In this connection, I may usefully refer to paragraph-19 of the reports, which is quoted hereunder:- “19. The phrase “taking cognizance of” means cognizance of an offence and not of the Patna High Court E.P. No.1 of 2011 dt.14-05-2012 - 5 - offender. Taking cognizance does not involve any formal action or indeed action of any kind but occurs as soon as a Magistrate applies his mind to the suspected commission of an offence. Cognizance, therefore, takes place at a point when a Magistrate first takes judicial notice of an offence. This is the position whether the Magistrate takes cognizance of an offence on a complaint or on a police report or upon information of a person other than a police officer. Before the Magistrate can be said to have taken cognizance of an offence under Section 190 (1) (b) of the Code, he must have not only applied his mind to the contents of the complaint presented before him, but must have done so for the purpose of proceeding under Section-200 and the provisions following that section. However, when the Magistrate had applied his mind only for ordering an investigation under Section 156 (3) of the Code or issued a warrant for the purposes of investigation, he cannot be said to have taken cognizance of an offence.” In that view of the matter, I have no option but to reject the contention of Sri Mangalam, learned counsel for the election- petitioner on the facts as noted above. It could not be pointed out that Patna High Court E.P. No.1 of 2011 dt.14-05-2012 - 6 - any criminal case of which cognizance had been taken and in which case the respondent was an accused has been suppressed by the respondent while filing his nomination for the said election, thus, amounting to a material suppression of fact which by law he was bound to disclose. That being the position, this election petition is devoid of any merit and has to be and is dismissed. Parties will bear their costs. The Patna High Court Dated 14th day of May, 2012 Trivedi/AFR (Navaniti Prasad Singh, J.)