IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.42213 of 2007 MADAN KUMAR, Son of Ram Prit Rai, Block Development Officer-cum-Returning Officer, Maker, P.S. Maker, District-Saran. …..Petitioner. Versus 1. THE STATE OF BIHAR. 2. Shanti Devi, Wife of Baharan Manjhi, resident of Village-Phoolwariya, P.S. Maker, District- Saran. …..Opposite Party. For the Petitioner : Mr. Sanjay Kumar Singh (Advocate) For the State : Mr. D. K. Upadhayaya (APP) ----------- 05/ 16.04.2010 Heard learned Counsel for the petitioner and learned Counsel for the State. Nobody appears on behalf of O.P. No. 2 despite service of notice. The petitioner is aggrieved from the order dated 07.09.2006 passed by learned Judicial Magistrate, Ist Class, Chapra in T.R. No. 540 of 2007 arising out of a Complaint Case bearing No. 1592 of 2006, whereby and whereunder the learned Magistrate found a prima facie case against the petitioner and two others under Sections 468, 171B, 171D, 171E, 171G and 420 of the Indian Penal Code and cognizance was taken. The complaint was filed by Shanti Devi, Wife of Baharan Manjhi and she has alleged that in the last Gram Panchayat Election, the post of Sarpanch in village Fulwariya Gram Panchayat of Maker Anchal in which she was a candidate for the post of Sarpanch. That seat was 2 reserved for a woman of Scheduled Caste. One Fuljhariya Devi, wife of Yogendra Manjhi was also a candidate for the same post and had filed her nomination and Fuljhariya Devi was elected. Dharmshila Devi in connivance with the other accused persons contested the election in the name of Fuljhariya Devi. Allegation against the petitioner was that he being the returning officer accepted the nomination paper on Fuljhariya Devi, thus, he has cheated the general public and the state. The Complaint Case under Sections 467, 468, 171B, 171D, 171E, 171G, 420 and 161 of the Indian Penal Code was transferred under Section 192 of the Code of Criminal Procedure for enquiry and disposal. Besides the statement of the complainant on solemn confirmation, Basdeo Manjhi and Kameshwar Manjhi have been examined as enquiry witnesses no. 1 and 2 respectively and after enquiry prima-facie the case was found. Learned Counsel for the petitioner has submitted that the complainant is a defeated candidate and her grievance is against all the persons who were concerned with the system of election. After she was defeated, she hatched a conspiracy and in order to tarnish the image of 3 the petitioner, the present case was filed. The petitioner at the relevant time was Block Development Officer of Maker and in that capacity he was returning officer in the Anchal. As a returning officer he accepts the nomination paper after seeing that the proper paraphernalia are completed. A returning officer cannot differentiate between one person and another. If the persons are qualified to contest election then the returning officer has to accept their nominations and the petitioner has accordingly discharged his job. The returning officer does not know personally every candidate. He has simply to verify as to whether his/her name appears in the voter list of the concerned Panchayat. The affidavit is also required. From the papers available on the record it was clear that Fuljhariya Devi was qualified to contest the election and there was no material before the petitioner which could have compelled him to reject her nomination. One Rabindra Manjhi is the proposer of Fuljhariya Devi and his name also appears in the voter list of that Panchayat. The proper nomination fee has also been paid. The petitioner has discharged his duty in accepting 4 the nomination paper, therefore, no offence was committed by him. Still the cognizance was taken ignoring the fact that the petitioner is a government servant and at that time he was acting as returning officer of the Gram Panchayat election. The petitioner should have been given protection, which is given to government servant, before taking cognizance under the mandatory provision Section 197 of the Code of Criminal Procedure. From the facts available on the record, it appears that the cognizance has been taken for the offence and at the time of occurrence the petitioner was discharging his duty in the capacity of a returning officer because he was at that time Block Development Officer of the concerned Panchayat where the election was to be held. All the papers were on the record while accepting the nomination paper of Fuljhariya Devi. In this view of the background the order for taking cognizance is not justified. The notice was issued to O.P. No. 2 but O.P. No. 2 has chosen not to oppose the prayer of the petitioner. Considering the facts and circumstances 5 of the case, it is apparent that the order taking cognizance is illegal and it is accordingly set aside. Thus, petition is allowed. kksinha/ (Shyam Kishore Sharma, J.)