IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10023 of 2008 RANI PRASAD Versus THE STATE OF BIHAR & ORS ----------- For the Petitioner:- Mr. N.K.Agarwal, Sr. Advocate Mr. Najmul Hoda, Advocate For the State :- Mr. Rana Bhupendra Narayan Singh, J.C. to S.C. 10. For the Commission:- Mr. R.S. Pradhan, Sr. Advocate Mr. Sanjeev Nikesh, Advocate ------------ 2. 21.7.2008 Heard learned counsel for the petitioner, learned counsel for the State Election Commission and learned counsel for the State. The petitioner prays for quashing of the order dated 23.8.2007 in Letter No. 2781 by which respondent no. 3. the Deputy Secretary, State Election Commission, Bihar, Patna has directed respondent no. 4, District Magistrate-cum-District Election Officer, Banka to lodge F.I.R. against the petitioner. The petitioner was a candidate for election to the post of member of Zila Parshad from Shambhuganj East Constituency in the District of Banka. She claims to be residing with her husband who is a resident of village Kasba, P.S. Shambhuganj, District- Banka and being permanently resident of that village, her name was inserted in the voter’s list in accordance with law. The petitioner was declared elected in the said election to Zila Parishad and thereafter took charge of the post. Subsequently, an election petition no. 42 of 2006 was filed in the Court of Sub Judge Banka-cum-Election Tribunal on the ground that the petitioner’s name has been inserted in the voters list by the respondents in an illegal and irregular manner. The said election petition is being contested by the petitioner. - 2 - It appears from the record that the District Magistrate-cum- District Election Officer (Panchayat), Banka, wrote to the State Election Commission by his letter no. 635 dated 10.7.2007 that the name of the petitioner has been added in the voter list in an illegal manner. On the basis of the said report, by the impugned letter no. 2781 dated 23.8.2007 the State Election Commission has directed the District Election officer (Panchayat), Banka to lodge an F.I.R. against the officers/employees involved in the said illegal Act and further stated that the petitioner also appears to be involved in the said illegal Act and against her also F.I.R. should be lodged under the relevant provision of the Indian Penal Code. Being aggrieved by the same, the petitioner has approached this Court. Learned counsel for the petitioner submits that the said direction has been issued without giving any opportunity to the petitioner by issuing show cause notice to her; it is, therefore, illegal and in violation of the principles of natural justice. It is further argued that the State Election Commission has no authority to direct any authority to file a criminal case against a person elected as a member of the Zila Parishad. Learned counsel also contends that once a matter is pending for adjudication before the election tribunal, the observation and finding of the State Election Commission that a prima facie case is made out against the petitioner is not legal and proper. It is lastly submitted that the allegation against the petitioner that her name has been illegally inserted in the voters list is already the subject matter of adjudication by the Election Tribunal in the election petition and if the same is decided against her, it will debar her from continuing as a - 3 - member of the Zila Parishad and thus, the same issue cannot be raised before the Criminal Court. Learned counsel for the State Election Commission, on the other hand submits that the direction issued by the State Election Commission to the Collector arises out of the duty imposed upon the Commission to ensure free, fair and clean conduct of the elections to the Panchayats in the State. It is argued that the Commission having received the report of the District Magistrate-cum-District Election Officer, regarding the illegalities committed in making addition to the voter list, was obliged in terms of the constitutional and statutory provisions to get a criminal case lodged which it has done by issuing necessary direction to the District Election Officer. It is contended that it is the duty of the Commission to supervise the election process and issue appropriate directions to the subordinate officials when any matter is reported and the Commission has merely done that. It is further submitted that merely for lodging a Criminal case against someone there is no requirement for issuing a show cause notice and the principles of natural justice are not attracted in such a case. On consideration of the submissions of learned counsel for the parties, this Court does not find any force in the argument of learned counsel for the petitioner. Under Article 243-K of the Constitution of India the preparation of election rolls and the conduct of elections to the punchayats have been vested in the State Election Commission. Similar provision has been enacted in the Bihar Panchayat Raj Act, 2006 also. That being the position and the Commission being responsible for the - 4 - preparation of the electoral rolls if any illegality is reported to the Commission with respect to the same, it is the duty of the Commission to ensure that proper action is taken where criminal offences in that regard are reported to have been committed, as in the present matter, by the District Magistrate-cum-District Election Officer the direction by the Commission to lodge an F.I.R. should follow a matter of course. So far as the pendency of the election petition is concerned, that is entirely a separate matter which in its consequence may debar her from holding the office and the election of the candidate may be declared void. The same is quite different from the criminal liability which is imposed upon the person concerned for having committed a criminal act under various provisions of the Indian Penal Code or other Penal enactment. Further, the District Magistrate as a District Election Officer is subordinate to the State Election Commission in the exercise of such functions and would be subject to the directions and control of the Commission and thus it is within the authority of the Commission to issue necessary directions in such matter to the District Magistrate who is bound to act in accordance with such directions. In view of the aforesaid discussions, there is no merit in this writ application and it is, accordingly, dismissed. P. Kumar (Ramesh Kumar Datta, J.)