ORDER

1. The present petition under section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C.') has been preferred assailing the FIR No.45/2020 dated 28.05.2020 which has been registered against the petitioner for the offences punishable under section 467, 468, 471 and 420 of the I.P.C.

2. Briefly narrated facts are that the complainant - respondent No.2 Jeevan Lal Sharma lodged the above referred FIR against the petitioner (who has contested election of Sarpanch against him and succeeded) and alleged that despite having three children, the petitioner had filed the nomination paper, with a false declaration that he had only two children on the date of submitting nomination form.

3. While disputing the fact that the petitioner has more than two children on the date of submitting nomination, as he has given up one child in adoption, learned counsel for the petitioner argued that even if the best case of the complainant is accepted that the petitioner indeed was having more than two children as on the date of submitting nomination form, the proceedings cannot be initiated/continued against the petitioner at the instance of the complainant, who is not a public officer.

4. Learned counsel for the petitioner relied upon following judgments by this Court as well as Coordinate Bench of this Court in case of (1) Smt. Kamla Vs. State of Rajasthan & Anr. : S.B. Criminal Misc. Petition No.1164/2016, (2) Prithvi Singh Vs. State of Rajasthan & Anr. : S.B. Criminal Misc. Petition No.661/2016, (3) Amita Trivedi & Anr. Vs. State of Rajasthan & Anr. : S.B. Criminal Misc. Petition No.2762/2011, (4) Chokha Ram Vs. State of Rajasthan & Anr. : S.B. Criminal Misc. Petition No.250/2016 and (5) Balbir Singh Vs. State of Rajasthan : Criminal Revision No.420/2016.

5. Learned Public Prosecutor, on the other hand, submitted that as per the factual report, the Investigating Officer has found that case under section 467, 468, 471 & 120-B of the IPC is made out against the petitioner.

6. He argued that the petitioner has forged the documents such as Aadhar Card etc. and has mislead the Election Officer to accept his nomination form by way of deceiving and cheating and thus, no interference be made.

7. Learned Public Prosecutor was however not in a position to point out as to how the law laid down by this Court in almost identical circumstances is not applicable in the instant case.

8. On perusal of the above referred judgments noted in para No.4, this Court finds that it has been a consistent view of this Court that in election matters, if a candidate files incorrect information, the offence (if any) made out is, one under section 171-G, 177, 181, 193, 199 & 200 of I.P.C., which is a non- cognizable offence. And by virtue of sub-section (2) of section 155 of the Cr.P.C., a police officer cannot investigate into the allegations of a non-cognizable offence, in absence of order of a Magistrate having power to try such an offence.

9. Indisputably, no such order of the Magistrate has been obtained in the present case.

10. It will not be out of place to reproduce relevant part of the judgment in case of Smt. Kamla (supra) :-

'Thus, simultaneous investigation/prosecution of the petitioner in two separate F.I.Rs. for the very same allegation is not permissible. The other part of the impugned F.I.R. relates to the allegation that the petitioner gave a wrong declaration regarding the number of her children while filling the nomination papers. Obviously, the said act would constitute an offence of furnishing false information to a public servant. These allegations even if accepted, would be covered by the offences punishable under Sections 171(g) and 177 I.P.C. or possibly for the offences under Sections 181, 193, 199 and 200 I.P.C. All these offences are either non-cognizable or are of such nature that either no prosecution can be launched in relation thereto without there being a complaint of the public servant concerned. Hence, no F.I.R.