S. 465 CrPC | Taking Cognizance Under Wrong Provision Curable Defect If Magistrate Otherwise Has Jurisdiction : Supreme Court

The Supreme Court on Wednesday (July 1) held that a Magistrate's error in taking cognizance of an offence under an incorrect statutory provision is a curable defect and, this mistake, by itself, does not warrant quashing the cognizance order, provided the Magistrate otherwise has the jurisdiction to deal with the matter.“The well-settled position of law is that the error in taking cognizance under the wrong Section is, in fact a curable defect so long as the Court that has taken cognizance has the power to take cognizance of the other Sections also.”, observed a bench of Justice Sanjay Karol and Justice Nongmeikapam Kotiswar Singh. The bench made the aforesaid observation while deciding a case where the Appellant, who won the election of a councillor in the 2015 Bhuj Civic Body Election, was aggrieved by the Gujarat High Court's order, refusing to interfere with the magistrate's order taking a cognizance for the offence punishable under the Representation of People's Act, 1951, relating to the allegation of filing a false asset declaration affidavit.The case arose from allegations that the Appellant had failed to disclose four agricultural properties owned by her husband in the election affidavit submitted under Rule 7A of the Gujarat Municipalities (Conduct of Elections) Rules, 1994. A private complaint was filed alleging commission of offences under Sections 192, 193 and 196 of the Indian Penal Code, along with Section 125A of the Representation of the People Act. The magistrate, however, took cognizance only under Section 125A of the RPA and issued summons to the appellant. The Gujarat High Court declined to quash the proceedings, prompting the appellant to appeal the Supreme Court. Before the Supreme Court, the appellant contended that the magistrate erred in taking cognizance under the RP Act, as the said law was enacted to decide disputes pertaining to elections to Parliament and State Legislatures, and does not extend to elections conducted for municipalities. Thus, the Appellant sought quashing of the cognizance order. Partly allowing the appeal, the judgment authored by Justice Karol concurred with the Appellant's contention regarding the error committed by a magistrate in taking cognizance under the RP Act; however, it held the same to be a curable defect, because of the magistrate's power to take cognizance under other provisions contained in a complaint. Although the Magistrate invoked the wrong statutory provision, the Court held that the defect did not render the entire proceedings void. Relying on Section 465 of the Code of Criminal Procedure, the Court reiterated that cognizance is taken of an offence and not of a particular statutory provision. An error in citing the applicable penal section does not invalidate the proceedings unless it causes a failure of justice. The court merely termed the order taking cognizance by a magistrate under the RP Act as a mere irregularity, capable of being cured, upon taking cognizance under the other applicable provisions. “It is found that although the private complainant had made a mention of certain provisions under the IPC, the learned Trial Judge while taking cognizance did so only under the RPA. As referred to above, the appellant contends that this is a jurisdictional error and, therefore, would go the root of the matter and whereas the State contends Section 465 CrPC would save the incorrect cognizance taken. We are inclined to agree with the State.”, the Court observed. Accordingly, the matter was remanded to the Magistrate concerned for taking cognizance afresh and proceeding as per law. “It is clarified that we have not expressed any opinion on the merits of the matter and the discussion supra is only for the limited purpose of adjudicating the propriety of the cognizance order as made.”, the court said.HeadnoteElection Law – Gujarat Municipalities Act, 1963 – Gujarat Municipalities (Conduct of Elections) Rules, 1994 (as amended in 2005) – Rule 7A – Filing of False Affidavit – Disclosure of assets owned solely by the spouse – Interpretation of Grammatical Construction and Punctuation - The appellant-candidate challenged the criminal proceedings initiated against her for suppressing the landed properties owned by her spouse in the election affidavit filed during the 2015 Municipal elections - The appellant contended that Rule 7A(1) only required disclosure of properties owned by candidates themselves or jointly with their spouse, excluding properties solely owned by the spouse - Held: Rejecting the contention, the Supreme Court observed that the text of the declaration requires details of the assets of "myself, my spouse and dependents" - The 'comma' employed after the word "myself" is a listing comma serving a structural and grammatical function to separate items in a series - The word "of" applies equally to "myself", "my spouse", and "dependents" - The sentence must be read collectively, making it mandatory for the candidate to...

S. 465 CrPC | Taking Cognizance Under Wrong Provision Curable Defect If Magistrate Otherwise Has Jurisdiction : Supreme Court

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S. 465 CrPC | Taking Cognizance Under Wrong Provision Curable Defect If Magistrate Otherwise Has Jurisdiction : Supreme Court

Yash Mittal

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