Nikki Devi @ Khushboo Kumari vs The State Of Bihar

Heard learned counsel for the petitioner and learned counsel appearing on behalf of the State.

The present application has been filed for quashing of the FIR in connection with Bihra P.S. Case No. 66 of 2018 dated 13.04.2018, registered for the offences under Section 171H of the Indian Penal Code and Sections 125-A(1) and 125-A(3) of the Bihar Panchayat Raj Act, 2006, as also the consequential criminal proceeding pending before the learned Judicial Magistrate-III, Saharsa in Criminal Case No. 1054 of 2018.

The prosecution case, in brief, is that the petitioner had contested the election for the post of Member, Panchayat Samiti, Rakiya in the year 2011 in the name of Khushboo Kumari, wife of Amit Kumar Singh, whereas in the year 2016, she contested the election for the post of Mukhiya of Rakiya Gram Panchayat in the name of Nikki Devi. It is alleged that while filing her nomination papers and affidavit, the petitioner concealed the aforesaid facts and furnished false information.

It is further alleged that on the basis of a complaint made by Chanda Devi and Rajesh Kumar, an inquiry was conducted by the Sub-Divisional Officer, Sadar, Saharsa. The inquiry report was thereafter communicated to the State Election Commission and, on the basis of the same, the informant, who was posted as Block Development Officer, lodged the written report on 13.04.2018, pursuant to which the present FIR was instituted.

Learned counsel for the petitioner submitted that the entire prosecution is unsustainable as the offences alleged are non-cognizable in nature. It is submitted that no order of the competent Magistrate under Section 155(2) of the CrPC was obtained before registration of the FIR or commencement of investigation. It is further submitted that even if the allegations made in the FIR are accepted in their entirety, the ingredients of the offences alleged are not disclosed.

It is further submitted that the petitioner has not used two different identities. Khushboo Kumari was her nickname and subsequently she got her name changed before the competent authority and thereafter contested the election in the year 2016 as Nikki Devi. It is submitted that the same issue had also arisen in the election proceeding relating to the petitioner and the contention that she had used two different names was not accepted by the learned Munsif.

Learned counsel for the petitioner has placed reliance upon the judgment of this Court in Manager Singh v. State of Bihar, reported in 2014 SCC OnLine Pat 2570, in support of the submission that police cannot investigate in respect of a non-cognizable offence, without the order of the Magistrate as contemplated under Section 155(2) of the CrPC.

Learned counsel has also relied upon the judgment in the case of Nikki Devi v. The State Election Commission (Panchayat) & Ors., reported in 2019 SCC Online Pat 1068, in which the issue regarding the alleged use of different names by the petitioner had arisen in connection with the election dispute. It is submitted that the contention regarding the petitioner using different names had not been accepted by the learned Munsif and the finding on the issue of change of name was returned in favour of the petitioner.

Learned counsel appearing for the State has opposed the application and submitted that the petitioner had furnished incorrect information in connection with the election and, therefore, the criminal proceeding should be allowed to continue.

I have considered the submissions advanced on behalf of the parties and perused the materials on record.

The first issue which arises for consideration is whether the police could have registered the FIR and conducted investigation in the facts of the present case. Section 155(2) CrPC provides that no police officer shall investigate a non-cognizable case without the order of a Magistrate having power to try such case or commit the case for trial.

The petitioner has specifically pleaded that no such order of the Magistrate was obtained before registration of the FIR or commencement of investigation. The State has not been able to demonstrate from the materials on record that any order under Section 155(2) CrPC was passed by the competent Magistrate.

This Court in Manager Singh’s Case (supra) has dealt with the requirement of following the procedure prescribed under Section 155 CrPC in a case relating to a non-cognizable offence.

Thus, where the allegations disclose only a non-cognizable offence, the police cannot assume the power to investigate without obtaining the requisite order of the Magistrate. The requirement under Section 155(2) CrPC is statutory and cannot be bypassed.

In the present case, the prosecution itself arises out of the allegation regarding the election held in the year 2016. The FIR was registered on 13.04.2018, after the inquiry had already been conducted and the report had been submitted in the year 2016. However, apart from the question of delay, the more fundamental defect is that the investigation into the alleged non-cognizable offences was undertaken without the requisite order of the Magistrate.

There is another aspect of the matter. The entire allegation against the petitioner substantially rests upon the fact that she contested the election in the year 2011 in the name of Khushboo Kumari and in the year 2016 in the name of Nikki Devi. The petitioner has explained that Khushboo Kumari was her nickname and that she subsequently got her name corrected before the competent authority and thereafter contested the election in the name of Nikki Devi.

The aforesaid issue had also arisen in the election proceeding concerning the petitioner. The learned Munsif did not accept the allegation that the petitioner had deliberately used two different names, and the finding on the issue of change of name was returned in favour of the petitioner. The same aspect was noticed by this Court in the writ proceedings of Nikki Devi’s Case (supra) arising out of the said election dispute.

This Court is conscious that at the stage of exercising jurisdiction under Section 482 CrPC, it is not permissible to conduct a detailed appreciation of evidence. However, the Court can certainly examine whether the allegations, even if taken at their face value, disclose the essential ingredients of the alleged offence.

In the present case, mere difference in the name appearing in two election records, in absence of any specific material to show that the petitioner deliberately assumed a false identity or knowingly furnished a false declaration, cannot by itself constitute the alleged criminal offence. The prosecution does not disclose any specific material showing that the petitioner was a different person in the two elections or that she had deliberately concealed her identity with the intention of deceiving the election authorities.

The allegation regarding filing of a false affidavit is also founded upon the same assertion regarding the two names. Once the very basis of the allegation, namely, that the petitioner deliberately used two different identities, is not supported by any specific material in the FIR and the issue regarding the change of name had already been considered in the election proceeding, continuation of the criminal proceeding against the petitioner would serve no useful purpose.

The delay in instituting the FIR also assumes significance. The alleged discrepancy relates to the election of the year 2016 and the inquiry report was submitted in the same year, whereas the FIR came to be instituted only on 13.04.2018. Though delay by itself may not be a ground for quashing a criminal proceeding, in the facts of the present case, it further supports the conclusion that continuation of the prosecution would amount to an abuse of the process of the Court.

The petitioner has also submitted that Section 447 of the Bihar Municipal Act, 2007 is pari materia with Section 125-A(3) of the Bihar Panchayat Raj (Amendment) Act and, therefore, the ingredients of the offence have to be strictly established before criminal liability can be fastened upon a candidate. The said submission also supports the requirement that there must be a clear allegation and material showing conscious and deliberate furnishing of false information.

It would be apposite to produce Sections 125 A(1)(3) & 447 of the Bihar Panchayat Raj (Amendment) Act, 2007 & Bihar Municipal Act 2007:

On a consideration of the entire matter, this Court finds that the FIR has been registered in respect of non-cognizable offences without the requisite order under Section 155(2) CrPC. Further, even if the allegations contained in the FIR are taken at their face value, they do not disclose the essential ingredients of the offences alleged against the petitioner.

In such circumstances, permitting the criminal proceeding to continue would amount to an abuse of the process of the Court. The inherent jurisdiction of this Court under Section 482 CrPC is therefore required to be exercised to secure the ends of justice.

In view of aforesaid, FIR in connection with Bihra P.S. Case No. 66 of 2018 dated 13.04.2018, as also the consequential criminal proceeding pending before the learned Judicial Magistrate-III, Saharsa in Criminal Case No. 1054 of 2018, is hereby quashed and set-aside qua petitioner.

Accordingly, this quashing petition stands allowed.

Let a copy of this judgment alongwith TCR, if any, be sent to the learned trial court.