Full Judgment Text
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PETITIONER:
SHRI VIRINDAR KUMAR SATYAWADI
Vs.
RESPONDENT:
THE STATE OF PUNJAB.
DATE OF JUDGMENT:
22/11/1955
BENCH:
ACT:
Representation of the People Act, (XLIII of 1951), ss. 33,
36-Criminal Procedure Code (V of 1898), ss. 195(1)(b), 476,
476- B - Returning Officer-Deciding on the validity or
otherwise of nomination paper under ss. 33, 36 of the Act-
Whether a court within the meaning of ss. 195(1)(b), 476 and
476-B of the Code of Criminal Procedure.
HEADNOTE:
Held that a Returning Officer acting under se. 33 and 36 of
the Representation of the People Act, 1951 and deciding on
the validity or otherwise of a nomination paper is not a
court within the meaning of ss. 195(1)(b), 476 and 476-B of
the Code of Criminal Procedure.
Shell Co. of Australia v. Federal Commissioner of Taxation
([1931] A.C. 275 at 296), B. v. London County Council
([1931] 2 K.B. 215), Cooper v. Wilson ([1937] 2 K.B. 309),
Huddart Parker and Co. v. Moorehead ([1908] 8 C.L.R. 330),
Rola Co. v. The Commonwealth ([1944] 69 C.L.R. 185), Bharat
Bank Ltd. v. Employees of Bharat Bank Ltd. ([1950] S.C.R.
459), Mehar Singh v. Emperor, (A.I.R. 1933 Lah. 884),
Emperor v. Nanak Chand (A I.R. 1943 Lah. 208), Har Prasad v.
Emperor, (A.I.R. 1947 All. 139) and Channu Lal v. Rex
([1950] 51 Cr. L.J. 199), referred to.
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 62 of
1954.
Appeal by special leave from the Judgment and 0rder dated
the 10th June 1953 of the Punjab High Court at Simla in
Criminal Revision No. 86 of 1953 arising out of the Judgment
and Order dated the 7th January 1953 of the Court of
Sessions Judge, Karnal in Criminal Appeal No. 355 of 1952.
N. C. Chatterjee, (Vir Sen Sawhney and Rajinder Narain,
with him) for the appellant.
Gopal Singh and P. G. Gokhale, for the respondent.
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1955. November 24. The Judgment of the Court was delivered
by
VENKATARAMA AYYAR J.-The appellant was a candidate for
election to the House of the People from the Karnal Reserved
Constituency during the last General Elections. The proviso
to section 33(3) of the Representation of the People Act
(XLIII of 1951), omitting what is not material, enacts "that
in a constituency where any seat is reserved for the
Scheduled Castes, no candidate shall be deemed to be
qualified to be chosen to fill that seat unless his nomi-
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nation paper is accompanied by a declaration verified in the
prescribed manner that the candidate is a member of the
Scheduled Castes for which the seat has been so reserved and
the declaration specifies the particular caste of which the
candidate is a member and also the area in relation to which
such caste is one of the Scheduled Castes". Rule 6 of the
Election Rules provides that the declaration referred to in
the above proviso shall be verified by the candidate on oath
or solemn affirmation before a Magistrate. Schedule If
contains the form of nomination paper to be used, with the
terms in which the declaration is to be made by the
candidate and verified by the Magistrate. On 5-11-1951 the
appellant signed two nomination papers, each containing the
following declaration:
"I hereby declare that I am a member of the Balmiki Caste
which has been declared to be a Scheduled Caste in the State
of Punjab".
The Balmiki Caste is one of the castes declared to be a
Scheduled Caste under the "Constitution (Scheduled Castes)
Order, 1950". The above declaration was made on solemn
affirmation before the First Class Magistrate, Karnal, and
the nomination paper& with the above declaration were filed
before the District Magistrate, Karnal, who was the
returning officer. One Jai Ram Sarup, a member of the
Chamar caste, which is one of the Scheduled Castes, was also
a candidate for the seat, and he raised the objection that
the appellant was not a Balmiki by caste, and that he was
therefore not qualified to stand for election to the re-
served Constituency. Acting on the declaration afore-
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said, the returning officer overruled the objection, and
accepted the nomination paper of the appellant as valid. At
the polling, the appellant got the majority of votes, and on
6-3-1952 he was declared duly elected.
On 27-8-1952 Jai Ram Sarup filed the application out of
which the present appeal arises, under sections 476 and 195
of the Code of Criminal Procedure before the District
Magistrate, who functioned as the returning officer. He
therein alleged that the declaration made by the appellant
that he belonged to the Balmiki caste was false, that, in
fact, be was born a Muslim and had been converted to
Hinduism, and that therefore "in the interests of justice"
and "for safeguarding the interests of the Scheduled
Castes", proceedings should be taken for his prosecution.
In his counter-affidavit the appellant stated:
"I am not a Muhammadan by birth. On the other hand, I was
born in Balmiki Hindu family. I am a Hindu".
The District Magistrate held an enquiry in which one Prith
Singh Azad, President of the Depressed Classes, Delhi, gave
evidence that the appellant was a Muslim of the name of
Khaliq Sadiq, that in 1938 he applied to the Suddhi Sabha to
be converted to Hinduism, that be was so converted, and that
thereafter he came to be known as Virindar Kumar. In cross-
examination, he stated that the appellant bad admitted
before him that he was a Muslim by birth. He added that he
bad two Muslim wives living at the time of the conversion.
The applicant, Jai Ram Sarup, also produced ten letters
stated to be in the handwriting of the appellant in proof of
the above facts. On 17-9-1952 the Magistrate passed an
order that there was a prima facie case for taking action,
and on 29-9-1952 he filed a complaint before the First Class
Magistrate, Karnal, charging the appellant with offences
under sections 181, 182 and 193 of the Indian Penal Code.
Against this order, the appellant preferred an appeal to the
Court of the Sessions Judge, Karnal, who dismissed the same
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on the ground that the returning officer was not a Court,,
that the proceedings before
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him did not fall under section 476, and that there fore no
appeal lay under section 476-B. The appellant took the
matter in revision before the High Court, Punjab, and that
was heard by Harnam Singh, J., who held, differing from the
Sessions Judge, that the returning officer was a Court, and
that his order was therefore appealable. He, however, held
that on the merits there was no case for interference, and
accordingly dismissed the revision. It is against this
order that the present appeal by special leave is directed.
On behalf of the appellant Mr. N. C. Chatterjee argues that
having held that the order of the returning officer was
appealable, the learned Judge ought to have remanded the
case for hearing by the Sessions Judge on the merits, and
that his own disposal of the matter was summary and
perfunctory. The contention of Mr. Gopal Singh for the
respondent is that the view of the Sessions Judge that the
returning officer was not a court and that his order was
not, therefore, appealable was correct’, and that further
the order of the High Court in revision declining to inter-
fere on the merits was not liable to be questioned in
special appeal in this Court.
The first question that arises for our decision is whether
the order of the District Magistrate passed on 17-9-1952 as
returning officer is open to appeal. The statutory
provisions bearing on this point are sections 195, 476 and
476-B of the Code of Criminal Procedure. Section 195(1)(a)
provides that no court shall take cognizance of any offence
punishable under sections 172 to 188 of the Indian Penal
Code except on the complaint in writing of the public
officer concerned or of his superior. Section 195(1)(b)
enacts that no Court shall take cognizance of the offences
mentioned therein, where such offence is committed in, or in
relation to, any proceeding in any Court, except on the
complaint in writing of such Court or a Court to which it is
subordinate. The offence under section 193 is one of those
mentioned in section 195 (1) (b). Section 476 prescribes
the procedure to be followed where a Court is moved to lay a
complaint, and that applies
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only to offences mentioned in sections 195(1) (b) and 195(1)
(c) and not to those mentioned in section 195(1) (a).
Section 476-B provides for an appeal from an order passed
under section 476 to the appropriate Court. The result then
is that if the complaint relates to offences mentioned in
sections 195(1) (b) and 195(1) (c), an appeal would be
competent, but not if it relates to offences mentioned in
section 195(1) (a). Now, the order of the Magistrate dated
17-9-1952 directs that the appellant should be prosecuted
for offences under sections 181, 182 and 193. There is no
dispute that the order in so far as it relates to offences
under sections 181 and 182 is not appealable, as they fall
directly under section 195(1) (a). The controversy is only
as regards the charge under section 193. Section 193 makes
it an offence to give false evidence whether it be in a
judicial proceeding or not, and it likewise makes it an
offence to fabricate false evidence for use in a judicial
proceeding or elsewhere. If the offence is not committed in
a judicial proceeding, then it will fall outside section
195(1)(b), which applies only when it is committed in or in
relation to a proceeding in Court, and there is in
consequence no bar to a complaint being made in respect
thereof unaffected by the restrictions contained in section
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195(1) (b). But if the offence under section 193 is
committed in or in relation to a proceeding in Court, then
it will fall under section 195 (1) (b), and the order
directing prosecution under section 476 will be appealable
under section 476-B. The point for decision therefore is
whether the returning officer in deciding on the validity of
a nomination paper under section 36 of the Act can be held
to act as a Court. The question thus raised does not appear
to be covered by authority, and has to be decided on the
true character of the functions of the returning officer and
the nature and the extent of his powers.
"There has been much difference of opinion as to the
precise) character of the office of a returning officer,
viz., as to whether he is a judicial or ministerial
officer", says Parker on Election Agent and Returning
Officer, Fifth Edition, page 30. The true
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view, according to him, is that he partakes of both
characters, and that in determining objections to nomination
papers, he is a judicial officer. That is also the view
taken in Indian decisions. But before we can hold that the
proceedings before a returning officer resulting in the
acceptance or rejection of a nomination paper fall within
section 195(1)(b) of the Code of Criminal Procedure, it must
be shown not merely that they are judicial in character but
that further he is acting as a Court in respect thereof. It
is a familiar feature of modern legislation to set up bodies
and tribunals, and entrust to -them work of a judicial
character, but they are not Courts in the accepted sense of
that term, though they may possess, as observed by Lord
Sankey, L.C. in Shell Company of Australia v. Federal
Commissioner of Taxation(1), some of the trappings of a
Court. The distinction between Courts and tribunals
exercising quasi-judicial functions is well established,
though whether an authority constituted by a particular
enactment falls within one category or the other may, on the
provisions of that enactment, be open to argument.
There has been considerable discussion in the Courts in
England and Australia as to what are the essential
characteristics of a Court as distinguished from a tribunal
exercising quasi-judicial functions. Vide Shell Company of
Australia v. Federal Commissioner of Taxation(1), R. v.
London County Council(2), Cooper v. Wilson(3), Huddart
Parker and Co. v. Moorehead(4), and Rola Co. v. The
Commonwealth(5). In this Court, the question was considered
in some fulness in Bharat Bank Ltd. v. Employees of Bharat
Bank Ltd.(6). It is unnecessary to traverse the same ground
once again. It may be stated broadly that what
distinguishes a Court from a quasi-judicial tribunal is that
it is charged with a duty to decide disputes in a judicial
manner and declare the rights of parties in a definitive
judgment. To decide in a judicial manner involves that the
parties are entitled as
(1) [1931] A.C. 275,296.
(3) [1937] 2 K.B. 309.
(5) [1944] 69 C.L.R. 185.
(2) [1931] 2 K.B. 215.
(4) [1908] 8 C.L.R. 330.
(6) [1950] S.C.R. 459.
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a matter of right to be heard in support of their claim and
to adduce evidence in proof of it. And it also imports an
obligation on the part of the authority to decide the matter
on a consideration of the evidence adduced and in accordance
with law. When a question therefore arises as to whether an
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authority created by an Act is a Court as distinguished from
a quasi-judicial tribunal, what has to be decided is whether
having regard to the provisions of the Act it possesses all
the attributes of a Court.
We have now to decide whether in view of the principles
above stated and the functions and powers entrusted to the
returning officer under the Act, be is a court. The
statutory provision bearing on this matter is section 36.
Under section 36(2), the returning officer has to examine
the nomination paper and decide all objections which may be
made thereto. This power is undoubtedly judicial in
character. But in exercising this power, he is authorised
to come to a decision "after such summary enquiry, if any,
as he thinks necessary". That means that the parties have
no right to insist on producing evidence which they may
desire to adduce in support of their case. There is no
machinery provided for summoning of witnesses, or of
compelling production of documents in an enquiry under
section 36. The returning officer is entitled to act suo
motu in the matter. When one compares this procedure with
that prescribed for trial of election petitions by the
Election Tribunal under sections 90 and 92 of the Act, the
difference between the two becomes marked. While the
proceedings before the Election Tribunal approximate in all
essential matters to proceedings in civil courts, the
proceedings under section 36 present a different picture.
There is no lis, in which persons with opposing claims are
entitled to have their rights adjudicated in a judicial
manner, but an enquiry such as is usually conducted by an ad
hoc tribunal entrusted with a quasi-judicial power. In
other words, the function of the returning officer acting
under section 36 is judicial in character, but he is not to
act judicially in discharging it. We are of opinion that
the returning officer deciding on
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the validity of a nomination paper is not a Court for the
purpose of section 195 (1) (b) of the Code of Criminal
Procedure, and the result is that even as regards the charge
under section 193, the order of the Magistrate was not
appealable, as the offence was not committed in or in
relation to any proceeding in a Court. In this view, the
learned Sessions Judge was right in dismissing the appeal as
incompetent, and the question argued by Mr. N. C. Chatterjee
that the learned Judge of the High Court ought to have
remanded the case for hearing by the Sessions Judge on the
merits does not arise.
It was next argued for the appellant that as the application
for initiating prosecution under section 193 was made under
section 476 on the assumption that the returning officer was
a court, the order passed thereon must, in the view that he
was not a Court, be quashed as without jurisdiction. But
then, it should be noted that the application was presented
under section 195 also, and it was necessary to move the
returning officer under section 195(1)(a) with reference to
the offences under sections 181 and 182, and there could be
no question of quashing the order as without jurisdiction.
Even as regards section 193, the position is this: It has no
doubt been held that section 476 must be taken to be
exhaustive of all the powers of a Court as such to Jay a
complaint, and that a complaint filed by it otherwise than
under that section should not be entertained. But there is
abundant authority that section 476 does not preclude the
officer presiding over a Court from himself preferring a
complaint, and that the jurisdiction. of the Magistrate
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before whom the complaint is laid to try it like any other
complaint is not taken away by that section. Vide Meher
Singh v. Emperor(1) , Emperor v. Nanak Chand(2), Har Prasad
v. Emperor(3) and Channu Lal v. Rex(4). There is thus no
legal impediment to a returning officer filing a complaint
under sections 181 and 182 as provided in section 195 (1)
(a) and charging the accused therein with also an offence
(1) A.I.R. 1933 Lah. 884.
(3) A.I.R. 1947 All. 139.
(2) A.I.R. 1943 Lah. 208.
(4) [1950] 51 Cr. L.J. 199.
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under section 193. In this connection, it should be
mentioned that the appellant himself took the objection
before the Magistrate that qua returning officer he was not
a Court and that the proceedings under section 476 were
incompetent, and that that was overruled on the ground that
it was an enabling section. There is, therefore, no ground
for holding that the order dated 17-9-1952 was without
jurisdiction.
It was finally contended that the Magistrate was under a
misapprehension in stating that the appellant had declared
that he was born a Balmiki, whereas, in fact, he only
declared that he was a Balmiki by caste. But it was the
appellant himself who pleaded in his counter-affidavit that
he was not a Muslim by birth, and was born in a Balmiki
Hindu family, and the observation of the Magistrate has ob-
vious reference to what was pleaded and argued by the
appellant. And it should also be noted that no objection
was taken either in the grounds of appeal to the Sessions
Court or in revision to the High Court with reference to the
above remark. Moreover, the charge as laid in the complaint
is that the declaration of the appellant in the nomination
paper that he "was a member of the Balmiki caste" was false.
There is accordingly no substance in this contention.
It must be emphasised that in the view that the order of the
Magistrate dated 17-9-1952 was final, this appeal being
really directed against that order there must be exceptional
grounds before we can interfere with it in special appeal,
and none such has been established. On the other hand,
whether action should be taken under section 195 is a matter
primarily for the Court which hears the application, and its
discretion is not to be lightly interfered with in appeal,
even when that is competent. But where, as here, the
legislature does not provide for an appeal, it is
preposterous on the part of the appellant to invite this
Court to interfere in special appeal.
This appeal is accordingly dismissed.
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