The matter originated from a private complaint filed against Chandrikaben Kishor Dafda, who had been elected as a councillor in the 2015 Bhuj Civic Body Election. The complainant alleged that Dafda 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. The complaint invoked Sections 192, 193 and 196 of the Indian Penal Code together with Section 125A of the Representation of the People Act, 1951.
The trial magistrate, however, took cognizance solely under Section 125A of the Representation of the People Act and issued summons to the appellant. The Gujarat High Court declined to interfere with the magistrate’s order, prompting Dafda to approach the Supreme Court.
Dafda’s counsel contended that the Representation of the People Act, 1951, governs elections to Parliament and State Legislatures and does not extend to municipal elections. Consequently, taking cognizance under Section 125A of that Act was a jurisdictional error that struck at the root of the proceedings and warranted quashing of the cognizance order.
The State, represented by its counsel, argued that even if the magistrate had cited the wrong provision, the defect was curable under Section 465 of the Code of Criminal Procedure. It emphasized that the magistrate possessed the authority to take cognizance of the offence under the Indian Penal Code provisions mentioned in the complaint, and therefore the error did not cause a failure of justice.
A bench comprising Justice Sanjay Karol and Justice Nongmeikapam Kotiswar Singh examined the rival submissions. The bench observed that the well‑settled position of law treats an error in citing the incorrect statutory provision while taking cognizance as a mere irregularity, provided the court that has taken cognizance has the power to take cognizance of the other sections also.
The judgment, authored by Justice Karol, noted that the private complainant had expressly referred to certain provisions of the Indian Penal Code in the complaint. Although the trial judge took cognizance only under the Representation of the People Act, the magistrate’s jurisdiction was not ousted because the magistrate could have taken cognizance under the IPC provisions as well.
Relying on Section 465 CrPC, the bench 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 render the proceedings void unless it results in a failure of justice. In the present case, the defect was capable of being cured by directing the magistrate to take cognizance afresh under the appropriate provisions.
The bench further clarified that it was not expressing any opinion on the merits of the case; the discussion was confined to determining the propriety of the cognizance order.
Accordingly, the Supreme Court partly allowed the appeal. It agreed with the appellant’s contention that the magistrate had erred in taking cognizance under the Representation of the People Act for a municipal election matter. However, it held that the error was a curable defect. The matter was remanded to the magistrate concerned to take cognizance afresh and proceed in accordance with law.