Point of Law: chargesheet filed against petitioner, being in violation of provisions contained under Section 155(2) of CrPC and also on merit, is hereby quashed as taking contents of chargesheet as it is; no offence under Section 126(2) of Act of 1951 is made out against petitioner - Such a permission authorizing respondents/State to file chargesheet for a non-cognizable offence under Section 126(1) of Act of 1951 is unknown to law and is without jurisdiction and without authority of law and lacks legislative sanction as well, as such, it deserves to be quashed.

ORDER :

1. Petitioner herein was a contesting candidate of State Legislative Assembly Elections for State Assembly Seat – Rampur, Korba held on 19/11/2013.

He was found campaigning during the restricted period of 48 hours prior to the result of poll on 18/11/2013 along with certain canvassing materials (cards) pursuant to which the Returning Officer informed the S.H.O. of Police Station Rajgamar Chouki, Balco to take action against the petitioner under Section 126(2) of the Representation of the Peoples Act, 1951 (in short “the Act of 1951”). Thereafter, on 06/12/2013, respondent No. 2 sought permission from learned Judicial Magistrate for filing of chargesheet against the petitioner for offence under Section 126(2) of the Act of 1951. Learned Judicial Magistrate, Korba on 06/12/2013, finding that offence under Section 126(2) of the Act of 1951 is a non-cognizable offence, permitted the S.H.O. to file istegasha against the petitioner and thereafter, on 27/12/2013, istegasha for offence punishable under Section 126(2) of the Act of 1951 was filed against the petitioner and learned trial Court has even proceeded with the matter and charges have been framed against the petitioner on 18/08/2015 and application under Section 258 of CrPC was moved by the petitioner which was rejected by the trial Court vide order dated 12/02/2014 which was further challenged by the petitioner in revision but that too was dismissed. The instant petition under Section 482 of CrPC has been preferred by the petitioner seeking quashment of entire criminal proceeding against the petitioner in Criminal Case No. 825/2014 (State v. Nanki Ram Kanwar) pending before in the Court of Judicial Magistrate First Class, Korba.

2. Respondents/State has filed its return opposing the petition stating inter alia that prima facie petitioner has committed offence under Section 126(2) of the Act of 1951, therefore, the instant petition, as framed and filed, is not maintainable and it is not a case for quashing the criminal charges framed against the petitioner for offence under Section 126(2) of the Act of 1951.

3. Mr. Sumesh Bajaj, learned counsel for the petitioner, would submit that since offence under Section 126(2) of the Act of 1951 is a non­cognizable offence, no permission for investigation has been granted to the S.H.O., Police Chowki, Rajgamar, Balco under Section 155(2) of CrPC and there is no provision in the Code of Criminal Procedure empowering Judicial Magistrate for granting permission to file istegasha before the criminal Court, as such, it is absolutely bad and without authority of law. He would also submit that even the prosecution has clearly stated that there is no material available against the petitioner for offence punishable under Section 126(2) of the Act of 1951, yet the application filed by the petitioner under Section 258 of CrPC was rejected, as such, the prosecution of offence under Section 126(2) of the Act of 1951 against the petitioner be quashed.

4. Mr. Jitendra Pali, learned Deputy Advocate General, would support the impugned order and submit that petitioner has correctly been chargesheeted for offence punishable under Section 126(2) of the Act of 1951.

5. I have heard learned counsel for the parties, considered their rival submissions made hereinabove and went through the records with utmost circumspection.

6. Petitioner has been chargesheeted for offence punishable under Section 126(2) of the Act of 1951. It is the allegation of respondents/State that petitioner has contravened the provisions contained under Section 126(1) of the Act of 1951 and therefore, he is liable for punishment under Section 126(2) of the Act of 1951 which provides for imprisonment for a term which may extend to two years or fine, or both.

7. By virtue of the First Schedule Part – II appended with the Code of Criminal Procedure, 1973 which provides for classification of offences against other laws and if offences are punishable with imprisonment for less than three years