The main legal point established in the judgment is the duty of the Magistrate to ascertain jurisdiction, legal impediments, and compliance under the law before passing orders affecting the liberty of a citizen.

JUDGMENT :

Ashok G. Nijagannavar, J.

This petition is filed under Section 482 Cr.P.C. to quash the impugned order dated 19.01.2019 and further proceedings pursuant to it in C.C.No.15/2019 pending on the file of Prl. Chief Judicial Magistrate, Bidar, for the offences punishable under Section 123(3) of Representation of People Act. In the case on hand, the records would disclose that the initially the case was registered for the offences punishable under Section 123(3) of Representative of People Act and after investigation the charge sheet is filed for the offences punishable under Section 123 (3) of the along with Sections 171(C), 171(F) and Section 188 of IPC.

2. The facts leading to this petition are that on the basis of the complaint filed by Avinash Government Official during legislative assembly elections filed a complaint stating that he was appointed as a Nodal Officer to monitor and supervise that election code of conduct is not violated. On 30.04.2018 afternoon at about 1:00 p.m. there was a meeting held by the Congress party. The candidate of the Congress party has given speech with an intention to disturb communal harmony among Hindu and Muslim communities. The speech made by the Congress candidate was with sole intention to commit breach of public peace, by creating difference of opinion among Hindu and Muslim community.

3. On the basis of the said complaint, the PSI of town police station Bidar has registered a case in Crime No.51/2018 under Section 123(3) of representation of People Act. After conducting investigation, the police have filed a charge sheet for the offences punishable under Sections 171(C), 171(F) and Section 188 of IPC read with Section 123(3) of Representation of People Act. In pursuance of the charge sheet filed, the learned Magistrate has passed the order for taking cognizance of the aforesaid offences. The impugned order and further proceedings in C.C.No.15/2019 are challenged by the petitioner.

4. Heard the learned counsel for the petitioner and learned High Court Government Pleader for the respondent-State.

5. Learned counsel for the petitioner submitted that the procedure adopted by the Election Officer for filing complaint before the jurisdictional police is not in accordance with law. The procedure prescribed under Section 195 Cr.P.C. is not followed. The learned Magistrate has passed the order for taking cognizance mechanically without application of mind. Thus, the impugned order dated 19.01.2019 and proceedings in C.C.No.15/2019 cannot be sustained in law.

6. In support of his contentions, the counsel has relied on following decisions:

1. M.S.Ahlawat vs. State of Haryana and Another, (2000) 1 SCC 278

2. Sachida Nand Singh and Another vs. State of Bihar and Another, (1998) 2 SCC 493

3. in the case of Thipparaju vs. State of Karnataka, (2018) 4 KarLJ 695

4. in the case of Dr.K.P.Gopal Krishna vs. H.Hariyappa, Sub-Inspector, Jeevanbheema Nagar, Police Station, Bengaluru and Another, (2018) 1 KarLJ 469

5. in the case of Sri F.J.M.Crasta vs. The State of Karnataka by its Secretary, Education Department and Others, (2018) ILR(Kar) 369

7. Per contra, learned High Court Government Pleader submitted that the order passed by the learned Magistrate is in accordance with law. There are no valid grounds to interfere with the said order. Thus, petition deserves to be dismissed.

8. The first and foremost contention of the learned counsel for the petitioner is that the procedure prescribed under Section 195 Cr.P.C. is not followed. The police have conducted investigation on the basis of the complaint filed by the Election Officer and charge sheet has been filed which is not permissible.

9. Section 195 of Cr.P.C. reads as under:

195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence.

(1) No Court shall take cognizance-

(a) (i) of any offence punishable under sections 172 to 188 (both inclusive) of the Indian Penal