Cognizance Is Taken of the Offence, Not of the Section

What happened

The appellant contested the 2015 municipal elections for the position of Councillor. A complaint alleged that in her electoral filing she did not disclose the true extent of the property owned by herself and her spouse, contrary to Rule 7A of the Gujarat Municipalities (Conduct of Elections) Amendment Rules, 2005.

The complaint was filed under various provisions of the Indian Penal Code and the Representation of the People Act, 1951. The Magistrate issued summons under Section 125A of the Representation of the People Act.

She sought quashing. Her point was a clean one: the Representation of the People Act, 1951 does not govern the election of a Councillor, which is instead governed by the relevant State legislation. Summons had therefore been issued under a statute that did not apply. The High Court refused to quash, and she came to the Supreme Court.

Why the wrong section did not sink the prosecution

The Court did not have to decide that the Representation of the People Act applied in order to dismiss the challenge. It approached the question as one of curability.

The error in taking cognizance under the wrong Section is a curable defect so long as the Court that has taken cognizance has the power to take cognizance of the other Sections also.

That condition matters and is easy to skip past. The saving is not that any mislabelling is harmless; it is that the mislabelling is harmless where the same court could lawfully have taken cognizance under the right provision. Section 465 CrPC then operates to save the incorrect cognizance.

Underlying it is a settled principle the Court restates: cognizance is taken of the offence and not of people. The act complained of either discloses an offence or it does not, and the citation attached to it at the summoning stage is not what gives the court its jurisdiction.

The conduct was an offence either way

The second strand of the reasoning goes to substance rather than form. If the issue is that a false affidavit has been filed in the electoral process, that is an offence — and it does not stop being one because the election in question is governed by a State municipal statute rather than by the central Act.

So the appellant’s argument, even if correct on which statute governs a Councillor’s election, identified a labelling error rather than an absence of criminality.

Where this leaves a quashing petition

The practical lesson is about what a quashing petition has to establish. Showing that the summoning order cites the wrong provision is not enough. What has to be shown is that the conduct alleged discloses no offence at all, or that the court had no power to take cognizance under any applicable provision.

Where the same magistrate could have taken cognizance under the correct section, Section 465 will ordinarily absorb the error, and the petition fails at that point without the court needing to resolve the underlying statutory question.

Who argued it

Frequently asked

Is taking cognizance under the wrong section fatal to a prosecution?

No. The Supreme Court held it is a curable defect, so long as the court that took cognizance had the power to take cognizance of the other sections as well, and that Section 465 CrPC saves the incorrect cognizance.

What does 'cognizance is taken of the offence and not of people' mean?

That the court applies its mind to the alleged offence rather than to individuals or to the label attached to it. So an error in the section cited in the summoning order does not by itself deprive the court of jurisdiction over the offence disclosed.

Does the Representation of the People Act apply to a councillor's election?

The appellant argued it does not, and that such elections are governed by the relevant State legislation. The Court did not need to resolve that to dismiss the challenge, because the error in the provision cited was curable and the conduct alleged was an offence in any event.

Is filing a false affidavit in a municipal election an offence?

The Court proceeded on the basis that if a false affidavit has been filed in the electoral process, that is an offence — the point being that this does not depend on which electoral statute governs the particular election.

What must a quashing petition show instead?

That the conduct alleged discloses no offence at all, or that the court had no power to take cognizance under any applicable provision. Pointing to the wrong section in the summoning order is not enough where the same court could lawfully have proceeded under the right one.

Before filing a quashing petition on a defective summons

1. Ask whether the same court could have taken cognizance under the correct provision. If it could, Section 465 CrPC will likely save the order and the point is not worth leading with.
2. Attack the conduct, not the citation. Show that what is alleged discloses no offence under any applicable statute, rather than that the wrong statute was named.
3. Where a false declaration in an electoral filing is alleged, expect the court to treat it as an offence irrespective of which electoral law governs the poll.
4. Identify the correct governing statute anyway and put it on record, so the trial proceeds under the right provision even if the challenge fails.
5. Remember cognizance is of the offence, not of the offender or the section — arguments framed the other way tend not to survive.

Source. Supreme Court of India, 2026 INSC 665, [2026] 7 S.C.R. 518, Criminal Appeal No. 3095 of 2026, decided 1 July 2026 by Justice Sanjay Karol and Justice Nongmeikapam Kotiswar Singh. This explainer is written from the judgment text as reported.

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