Satya Dev Bushehari v. Ghanshiam .

1. This is an application in revision against the order of the Magistrate first class Kasumpti, dated 11-3-1953, taking cognizance of a complaint filed against the petitioner by the respondent. The offences alleged against the petitioner are forgery under section 465 and using as genuine a forged document under S. 471, I.P.C in respect of a nomination paper filed by him before the Returning Officer on 12-10-1951 under S. 33 of the Representation of the People Act, 1951. There was a quadrangular fight to fill a seat in the Himachal Pradesh Legislative Assembly from the Rajgarh constituency, the present petitioner Satya Dev Bushahari and respondent Ghanshiam being two of the contestants. The nomination paper delivered by the petitioner to the Returning Officer on 12-10-1951 mentioned one Sudarshan Das as the proposer. On 17-10-1951, the date fixed for the scrutiny of nominations, it was objected that the signature of Sudarshan Das on the nomination paper had been forged. The Returning Officer rejected the objection and accepted the nomination paper. The polling took place on 19 and 20-11-1951, & on the 30th of that month the Returning Officer declared the respondent Ghanshiam as the successful candidate. On 29-1-1952 the petitioner filed an election petition for a declaration that the election of the respondent Ghanshiam was void and that he, the petitioner himself, had been duly elected. The respondent filed a recriminatory petition before the Election Tribunal on 30-5-1952 under S. 97 of the Act contending that if the petitioner had been the returned candidate his election would have been void because he had committed the aforesaid forgery. Besides other issues, the Election Tribunal also framed an issue on this allegation of the respondent in his recriminatory petition. At the time of the arguments the counsel for the petitioner withdrew his prayer that he himself be declared as having been duly elected. The Tribunal therefore held that the recriminatory petition became redundant and consequently the issues framed on the basis of that petition were not argued on behalf of the parties. Eventually the election petition was dismissed on 6-2-1953. The judgment of the Election Tribunal is published on pages 393 to 407 of Part II, S. 3 of the Gazette of India Extraordinary dated 14-2-1953. The following day, i.e, on 7-2-1953, the respondent filed the aforesaid complaint in the said Court against the petitioner.

2. A preliminary objection was taken before the Magistrate on behalf of the accused, the present petitioner, that as the alleged forged document had been produced before the Returning Officer and subsequently before the Election Tribunal, both of which were Courts under the purview of S. 195, Cr. P.C the Magistrate was not entitled to take cognizance of the offences otherwise than on a complaint in writing of either of the said Courts. The learned Magistrate repelled the contention & took cognizance of the complaint on the findings that the Returning Officer was not a Court and that, although the Election Tribunal was a Court, it could not be said that the alleged forgery had been committed with the intention of using the forged document as evidence before that Tribunal. This last finding is on the face of it erroneous and was not supported by the learned counsel for the respondent. All that S. 195(1)(c) requires is that the offence in question should be alleged to have been committed by a party to any proceeding in any Court in respect of a document produced or given in evidence in such proceeding, but not that the offence should have been committed by the party with the intention of its being produced in the said proceeding.

3. The learned counsel for the petitioner argued that the Returning Officer was a Court under the provisions of S. 195 of the Code. Under S. 36 of the Representation of the People Act, which provides for scrutiny of nominations, it is open to the Returning Officer to refuse any nomination “after such summary inquiry, if any, as he thinks necessary.” In other words, it is open to him to refuse a nomination even without any inquiry. That being so, one of the essential attributes of a Court, that in arriving at its decision it must follow rules of procedure defined by Statute or recognised by law, is missing: — ‘the ‘Municipal Corporation of Rangoon v. M.A Shakur’, AIR 1926 Rang 25 (FB) (A). It was laid down in — Province of Bombay v. Khusaldas S. Advani’, AIR 1950 SC 222 at p. 225(B), that a decision will be quasi-judicial if the law under which the authority is making a decision itself requires a judicial approach. That could not be predicated of the decision of a Returning Officer in scrutinizing nomination papers under S. 36 of the said Act because the law required no judicial approach but a decision even without inquiry. The decision of a Returning Officer could not therefore be described even as quasi-judicial. I hold, agreeing with the Magistrate, that the Returning Officer was not a Court. There could be no doubt however that the Election Tribunal is a Court. Its members are not appointed as persona designata, but the Tribunal is appointed by the Election Commission for the trial of election petitions under S. 86 of the said Act. Judicial duties are thus entrusted to the Tribunal by operation of law and not by voluntary submission of the parties. The dispute upon which it adjudicates is a dispute of a civil nature concerning, as it does, the right of a party to be elected to a certain Legislature. The Tribunal also does not act merely as an advisory body, as was the case under the Indian Elections Offences and Inquiries Act (39 of 1920), but gives a definitive decision which is final under S. 105 of the present Act. Not only is it expected to conduct its proceedings with fairness and impartiality, but it must come to its decision according to the law laid down in the said Act. Finally, the rules of procedure which the Tribunal must follow are not arbitrary but as nearly as may be in accordance with the procedure applicable under the Code of Civil Procedure 1908, to the trial of suits, as provided by S. 90 of the Act. Under this last mentioned section and S. 92 the Tribunal has power to summon and examine witnesses on oath and the provisions of the Indian Evidence Act, 1872, apply in all respects to the trial of an election petition. An Election Tribunal therefore possesses all the necessary attributes of a Court, for as laid down in — ‘Pitman's Shorthand Academy v. B. Lila Ram & Sons’, AIR 1950 EP 181 (FB) (C):

“A Court of law may be defined as a Tribunal dealing with and adjudicating upon civil disputes by operation of law in a judicial manner untroubled by ulterior considerations or matters of executive policy and observing certain definite rules of procedure which are either defined by Statute or recognized by practice.”

4. Indeed, it was conceded by the learned counsel for the respondent that an Election Tribunal is a civil Court. He contended however that the provisions of S. 195(1)(c), Cr. P.C were not applicable, and he gave several reasons in support of this contention.

5. The first point urged by the learned counsel for the respondent was that, as the said sub-clause refers to a document produced or given in evidence in the proceeding it could not apply to a document, like the nomination paper in the present case, with which the proceedings started, as do the proceedings of a civil suit by the filing of a plaint. Firstly, the proceedings before the Election Tribunal did not start with the filing of the nomination paper in question but when the filing of an election petition under S. 81 of the Representation of the People Act, 1951. Even that portion of the proceedings before the Tribunal in which the alleged forgery became relevant started, not with the filing of the nomination paper in question, but with the institution of a recriminatory petition by the respondent under S. 97 of the Act. Secondly, even if the proceedings in question had started with the filing of the nomination paper, that would have amounted to production within the intendment of Cl. (c) of Sub-s. (1) of S. 195 of the Code, for ‘produced’ does not mean produced in evidence ‘Gobindram v. Emperor’, AIR 1942 Sind 62 at P. 64, Col. 2(D).

6. The next argument put forward was that Cl. (c) applied only to cases where an offence is committed by a party, as such, to a proceeding in any Court in respect of a document which has been produced or given in evidence in such proceedings. This argument was based on a Full Bench decision of the Allahabad High Court reported as — ‘Emperor v. Kushal Pal Singh*’, AIR 1931 All 443 (SB) (E). This view has been dissented from in — ‘Emperor v. Rachappa’, AIR 1936 Bom 221 (F), wherein it was laid down as follows:

“Under S. 195(1)(c) the relevant date which has to be considered by the Court is the date the Court is invited to take cognizance of the complaint, and all that the Court has to see is whether the offence in respect of which it is asked to take cognizance is alleged to have been committed by a party to any proceeding in any Court and in respect of a document produced or given in evidence in such proceeding. It is immaterial that the offence has been committed by the party before the proceedings are taken.”

7. The above view of the Bombay High Court represents the preponderance of authority in other High Courts also, including the Allahabad High Court. ‘Tenishah v. Bolahishah’, 14 Cal WN 479 (G); — ‘Kanahiya Lal v. Bhagwandas’, AIR 1926 All 30 (H); — ‘Nalini Kanta v. Anukul Chandra’, AIR 1918 Cal 792 (I); — ‘Khairati Ram v. Malawa Ram’, AIR 1925 Lah 266 (J); — ‘Emperor v. Bhawanidas’, AIR 1916 All 299 (K); — ‘Thadi Subbi v. Emperor’, AIR 1930 Mad 869 (L); — ‘Hayat Khan v. Emperor’, AIR 1932 Sind 90 (M) and — ‘Hariram Onkar v. Mt. Radha’, AIR 1943 Nag 327 (N). The contention of the learned counsel for the respondent that the offence in question should have been committed by a party, as such, to the proceeding has therefore no force. It was next argued by him that for the application of S. 195(1)(c) of the Code it is necessary that, at the time that a Magistrate takes cognizance of a complaint, the proceedings in or in relation to which the offence is alleged to have been committed must be still pending. He based this argument on a ruling of the Bombay High Court reported as — ‘Emperor v. Mallappa Tejappa’, AIR 1937 Bom 14 (O). There is no doubt that this is the view expressed in that ruling, which purported to follow the aforesaid earlier decision of that High Court in — AIR 1936 Bom 221 (F)’. Now, there is nothing in S. 195(1)(c) of the Code which could even remotely be said to support this view. The earlier Bombay ruling was adjudicating upon the question whether it was necessary that the alleged offence must have been committed by a person who was a party to the proceedings in a Court at the date of the commission of the offence and in repelling that contention, and in arriving at the view which has been cited above in extenso, it followed the aforesaid ruling of the Allahabad High Court reported as — ‘AIR 1916 All 299 (K). That ruling, it may be stated here incidentally, is the locus classicus on the subject and has been followed in most of the above cited rulings laying down the view which I have respectfully adopted. In that ruling, in repelling the argument that an offence could not with propriety be said to have been committed by a party to a proceeding on a date anterior to the institution of such proceeding, Piggott, J. observed as follows:

“At any rate, I am decidedly of opinion that the Legislature employed the words ‘an offence committed by a party to any proceeding’ with reference not to the date of the commission of the alleged offence, but with reference to the date on which the cognizance of the Criminal Court was invited.”

And again:

“To my mind the provisions of the sub-section under consideration require to be interpreted as applying to the case of any person who, at the time when a Criminal Court is invited to take cognizance of the matter, can rightly be described as ‘a party to any proceeding in any Court’ in which the document in question has been produced or given in evidence, that is to say, who is or has been a party to such proceeding.”

8. It is manifest that emphasis was laid on the date on which the cognizance of the Criminal Court was invited for interpreting the words “an offence committed by a party to any proceeding” in order to show that the offence need not have been committed in the course of the proceeding. It is not therefore permissible to deduce as, if I may respectfully say so, the learned Judges of the Bombay High Court purport to have done in the aforesaid two cases, that in referring to the date of the Magistrate taking cognizance of the offence in question Piggott, J. purported to lay down that the proceeding in or in relation to which the offence is alleged to have been committed should still be pending at the aforesaid date. I hold that it was not necessary that the proceedings in the Election Tribunal should have been still pending when the present complaint was filed on 7-2-1953. It was also contended in this connection that as the Tribunal had become functus officio after dismissing the election petition on 6-2-1953, it could not have filed a complaint under S. 195 of the Code. This argument also has no force. The particular election petition was no doubt disposed of on 6-2-1953, but the Tribunal continued to function as it had other petitions to decide.

9. Finally, it was contended that the record containing the nomination paper in question was summoned before the Election Tribunal at the instance of the respondent in connection with his recriminatory petition, and that therefore the party who is alleged to have committed the offence, i.e the petitioner, could not be said to have produced the document before the Tribunal. In other words, the contention of the learned counsel for the respondent was that the document in respect of which the offence is alleged to have been committed by a party to a proceeding in any Court should have been produced in that Court by that party. In support of his argument the learned counsel cited — ‘Janardhan Thakur… v. Baldeo Prasad Singh…Opposite Party.’, AIR 1920 Pat 147 (P). This ruling does support the view propounded by the learned counsel, but I am unable, if I may say so respectfully, to agree with that view. All that cl. (c) requires is that the document in question should have been produced or given in evidence in the proceeding in question, it does not say who should have produced the document or given it in evidence. The Patna ruling relied upon by the learned counsel for the respondent based its decision on three rulings which have already been cited, i.e — ‘AIR 1918 Cal 792’ (I), — ‘14 Cal WN 479’ (G) and — ‘AIR 1916 All 299’ (K). In none of those rulings however has it been laid down that the document in question should have been filed by the party against whom it is sought to file a complaint under S. 195 of the Code. On the other hand, it has been laid down — ‘In re Bhau Vyankatesh’, AIR 1925 Bom 433 (Q) that in S. 195(c), Cr. P.C the phrase “a document produced or given in evidence” means a document produced or given in evidence either by the party who is alleged to have committed the offence or by any one else. To the same effect was the view expressed in the aforesaid ruling in — ‘AIR 1942 Sind 62’ (D).

10. This disposes of all the objections raised by the learned counsel for the respondent. On the other hand, all the necessary conditions of S. 195(1)(c) of the Code are satisfied. The offences alleged to have been committed by the petitioner fall within the clause, that under S. 471 being specifically mentioned there, and the other one under S. 465 being included under the comprehensive S. 463. ‘AIR 1925 Lah 266’ (J). The offences are also alleged to have been committed by a party to the proceeding in a Court, i.e by the present petitioner in me Election Tribunal. Furthermore, the offence is alleged to have been committed in respect of a document, i.e the nomination paper, both produced and given in evidence in the proceeding before the Election Tribunal in support of the respondent's recriminatory petition. It is immaterial that the contingency of deciding the recriminatory petition did not arise by reason of the petitioner having withdrawn the prayer that he himself be declared to have been duly elected. I therefore hold that a private complaint by the respondent against the petitioner in respect of the aforesaid offences was barred, and that the Magistrate had no jurisdiction to take cognizance of that complaint. Accordingly, the revision is allowed, the order of the Magistrate taking cognizance of the respondent's complaint is set aside and the proceedings in that Court based on the complaint are quashed.

A/V.S.B

11. Revision allowed.