Har Prasad v. Emperor

1. This is an application in revision asking this Court to quash certain proceedings before a Magistrate entertained by him on a complaint made by an election Court. A similar application had been made to the Sessions Judge of Aligarh but was rejected by him.

2. The facts are as follows: There was a contested election for one of the wards in the Aligarh municipality. The present applicant Har Prasad was one candidate, while, the, other was Ram Lal. It is stated that Har Prasad was elected and thereupon the unsuccessful candidate filed an election petition which came for hearing before the Commissioner of the Agra Division, Mr. Pedley, who was invested with the powers of an election Court under Section 24(1) of the U.P Municipalities Act, 1916. The learned Commissioner allowed the petition and set aside the election of the applicant Har Prasad and declared a casual vacancy. He also declared Har Prasad incapable of being elected for a period of five years. In the course of the election petition, Ram Lal made an application to the Commissioner stating that on inspection of the record it appeared that Har Prasad had fabricated or abetted the fabrication of false evidence by the substitution of forged signature slips for the original and genuine slips. The Commissioner, Mr. Pedley was satisfied that there was ground for inquiry into this complaint and he framed a complaint which purported to be a complaint under Section 476 of the Cr PC, to the effect that the respondent Har Prasad did during the month of January and on one or more of the following dates, the 9th, 11th, 26th and 27th or on 1-2-1945 at Aligarh himself fabricate or abet the fabrication of false evidence by the substitution of forged for one or more genuine signature slips relating to voters Nos. 986, 1203, 332, 1641, 566, 1616, 2258, 1145 and 1026 among the election papers of Ward No. V, Non-Muslim Aligarh. This complaint he forwarded along with the complete judicial record of the election petition case to the District Magistrate, Aligarh, for disposal by himself or by a competent Magistrate deputed by him according to law. The District Magistrate made the case over to Mr. H.A Kidwai, Magistrate first class, for disposal. This was on 16-4-1945.

3. On 31-5-1945 an application was made in the Court of the Magistrate to the effect that the Commissioner, as Election Judge, was nether a civil, revenue nor a criminal Court and as such was not competent to make any complaint for offences referred to in Section 195 of the Cr PC. The Magistrate had treated or was prepared to treat the complaint as one of offence under ss. 466 and 468, Penal Code. The learned Magistrate disallowed this application and was prepared to proceed with the hearing of the case when a fresh application was made on 24-9-194 to the Sessions Judge. In that Court it was contended, first of all, that the Election Judge we not authorised to proceed under S. 476 and a complaint made by him under S. 195(1) was accordingly incompetent, ultra vires etc., and the therefore the lower Court, that is the Magistrate had no jurisdiction to entertain the complaint. I was further contended that the Magistrate was not empowered to go behind the terms of the complaint filed by the Commissioner, that is, the Election Judge, under Section 476 of the Cr PC, read with S. 195. These, I suppose, were in the natural of alternative pleas. The learned Sessions Judge after some discussion of the legal position, held that the Election Judge was not empowered ??? file a complaint under S. 476 read with S. 195 ??? but that the complaint in question could be maintained by the Magistrate under S. 190 as if made by a competent Court as provided in S. 195. I am not absolutely clear what he meant by this expression of opinion. In the result, he dismissed the application and hence this present application in this Court.

4. It is contended, and I think with force that the Commissioner of the Aligarh Division sitting as an Election Judge under the provision of the Municipalities Act, was not a Court within the meaning of Sections 476 and 195 of the Cr PC. These two sections, which are in a sense inter connected, speak of a civil, revenue or criminal Court, vide S. 476(1) and S. 195(2), and it certainly appears to me that an Election Judge cannot bi brought within the ambit of the term “civil, revenue or criminal Court.” It follows that the com plaint made by the Commissioner as Election Judge was not one which could be entertained by the Magistrate under Section 195(1) of the Cr PC.

5. The only other provision which could apply is S. 190. Section 190(1) provides as follows:

“Except as hereinafter provided, any Presidency Magistrate, District Magistrate, or Sub-Divisional Magistrate, and any other Magistrate, specially empowered in this behalf, may take cognizance of any offence—

(a) Upon receiving a complaint of facts which constitute such offence.”

6. It is contended that the complaint sent by Mr. Pedley as Election Judge to the District Magistrate of Aligarh could not be treated as a complaint under S. 190(1)(a), and the apparent two bases of this argument are first, that Mr. Pedley was sitting as a Court and a complaint which is made by any sort of Court cannot be created as a complaint under S. 190(1)(a) made by a private person; secondly, that in the case of a complaint made by a private person, the complainant is liable, if the accused is acquitted, to a suit for malicious prosecution and obviously a complaint of this kind would with difficulty be based as the foundation for such a civil action. In my judgment, there is no real force in either of these contentions. If the contentions are sound, a person who commits perjury or any other offence before an election Court must go off scot free unless the opposite party is prepared to institute a private complaint under S. 193, Penal Code. But I do not see why an Election Judge should be debarred from making such a complaint even hough the complaint is to be treated as not made by a Court but as made only by the presiding officer of the Court under S. 190. Moreover there is nothing in S. 190 of the Code unless it be the words “Except as hereinafter provided” which lays it down that a complaint of acts must be a private complaint in the sense of being made by a private person and not some me presiding over a Court of a kind which does lot come within the scope of Ss. 476 and 195. That view was taken by my brother Allsop in 938 A.L.J 5281, where it was held that there was nothing in S. 190 to prevent a Sub-Divisional Magistrate from taking cognizance of an offence that happened to be reported to him by a Civil Judge or an officer who presides in a Court of justice. It was also stated that the Civil Judge being a complainant it is not necessary that he should be examined before the Magistrate who sakes cognizance of the complaint (vide Section 200 ???) of the Cr PC). However, even if he ought ??? be examined and is not examined, “that would amount to an irregularity which would lot vitiate the whole trial.”

7. In my judgment the principle of this decision is clearly applicable and the Magistrate was perfectly competent to entertain this complaint under the provisions of Section 190(1)(a) of the Cr PC. The words “Except as hereinafter provided” ??? not affect the case because there is nothing a the succeeding sections which prevents an Election Judge from being treated as a private person.

8. As regards the sections under which the Iagistrate trying the case may choose to frame charges against the applicant, that is a matter entirely in Ids discretion.

9. It is always open to ??? Court before which a complaint is lodged in which only one or two sections are named to same a charge under a third or fourth sections ??? his opinion the facts proved establish a barge under a different section or sections from those named in the original complaint. I find no force in this application and dismiss it accordingly.

10. Application dismissed.