22 November 1955
Supreme Court







DATE OF JUDGMENT: 22/11/1955


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. 1014 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-



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- 1015 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



on  the ground that the returning officer was not a  Court,, that the proceedings before 1016 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 1017 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



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 1018 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. 1019 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



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 129 1020 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



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. 1021 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. 1022