S.C.R.

SUPREME COURT REPORTS 883

conducted themselves not in accordap.ce with law or if they have acted in excess of their jurisdiction. The same is the answer to the petitioner's next contention that the sale could not be confirmed by the Minister and that under the rules it was only the Chief Comm1ss10ner who was authorised to confirm it. The point of discrimination was not seriously argued before us.

For the reasons given above we see no validity in this application and we accordingly dismiss it with costs.

Petition dismissed.

Agent for the peut10ner: S. D. Sekhri.

Agent for the respondent: G. H. Rajadhyaksha.

THE VICE-CHANCELLOR, UTKAL

UNIVERSITY AND OTHERS

fl.

S. K. GHOSH AND OTHERS.

[MEHR

CHAND

MAHAJAN. C.J., MuKHERJEA, S. R. DAs, VrVIAN BosE and GHULAM

HASAN JJ.]

Constitution of India, art. 226-Mandamus petition-High Court-Whether can constitute itself as court of appeal-Resolu~ ti<>ns passed by University Syndicate-Validity of-Notice of meeting issued to all-T¥ant of due notice waived-Substantial compliance with spirit of law.

In the present case there were two meetings of the University Syndicate, consisting of twelve members.

Proper notices of both meetings were issued to all the members but one member did not attend one meeting and another n1e111ber did not attend the other meeting. 1'he defect \Vas that the subject matter of the present case was not included in the agenda of either meeting but one of the items in the agenda of both the notices was "other matters_, if any." The subject matter consisted of leakage of examination papers and the cancellation of results. fhose present passed the resolution on both occasions unanimously.

The High Court held that want of notice in the two cases invalidated the resolutions

!954

Coovetjee B. Bharucha v.

The Excise Commissioner and the

Chief Commis~

sioner, Ajmer and Others.

Mahajan C . .].

Jariuary 15.

The Vice Chancellor, Utkal

University and Others.

S. K. G'wsh

and Ot'LtTs.

Bose].

and issued a 1nandan1us directing the syndicate to take steps for the publication of the results : Held, that \vant of due notice can be \vaived in given circum~ stances.

In the present case the two absentees did in fact attend one or other of the meetings and expressed their views, not individually but as members of a meeting which was considering the n1atter and there was unanimity on both occasions.

The substance is more important than the form and if there is substantial compliance \Vith the spirit and substance of the law, an unessential defect in form shpuld not be allowed to defeat what is otherwise a proper and valid resolution.

As in the present case, there was actual appearance without objection at meetings properly convened and there was complete unanimity on bOth occasions the two resolutions were not invalid because whatever may be thought about each taken separately, the defects, if any, are cured when two are read together and regarded as a whole.

Held further, that in a 1nandamus petition the High Court cannot constitute itself into a court of appeal from the authority against which appeal is sought.

It is not the function of courts of law to substitute their wisdom and discretion for that of the persons to \Vhose judgment the matter in question is entrusted by the law. 1'he present was not the sort of case in which a mandamus ought to issue.

Radha Kishan faikishan v. Municipal Committee, Khandwa (61 I.A. 125) and Young v. Ladies Imperial Club (89 L.J.K.B. 563) referred to.

CIVIL

APPELLATE

JURISDICTION : Civil Appeal No. 7 of 1952.

Appeal by special leave from the Judgment and Order, dated 9th and 17th August, 1951, of the High Court of Judicature at Orissa in Miscellaneous Judicial Case No. 80 of 1951, and Order dated the 20th August,, 1951, in Supreme Court Appeal No. 15 of 1951, on the. file of the said High Court.

Dr. Bakshi Tek Chand (G. C. Mathur and H. Mohapatra, with him) for the appellants.

N. C. Chatterjee ( V. S. Sawhney and R. Patnaik, with him) for respondents Nos. 1-8, 10-16, 18-23 and 25-34.

1954. January 15. The Judgment of the Court was delivered by BosE J.-This appeal arises out of a petition made by certain students of the Utkal University of Orissa

to the High Court of Orissa at Cuttack seeking a mandamus under article 226 of the Constitution against the Vice-Chancellor of the University and certain other persons connected with it.

In view of an undertaking given before us on behalf of the University, the questions at issue lose most of their practical importance and only two questions of principle remain.

Because of this we do not intend to examine the matters which arise at any length.

The facts are as follows.

The first M.B.B.S.

Examination of the University included Anatomy as one of its subjects. This examination was divided into three parts.

The theoretical portion, which was written, was fixed for the 9th and 10th of April, 1951.

The practical was fixed for the 19th and the viva t•oce for the 20th.

At 7 o'clock on the morning of the 9th, before the examination began, a member of the Senate was to!<! that there had been a leakage of the questions and he was given a paper which was entitled "hints". He at once contacted three other members of the Scm, te and handed over copies of these "hints" to them. The three members were Mr.

Justice Jagannadhaclas, Mr. Pradhan, the Director of Public Instruction in Orissa, and Mr. Lingaraj Misra, the Minister tor Education.

The Vice-Chancellor was not inform, cl •t the time and no further action was taken. The e:famination proceeded as scheduled on the chtes fixed.

The Vice-Chancellor was informed on the 19th. He at once asked Lt. Col. Papatla, the Principal of the Medical College, to look into the matter.

This was done and Lt. Col. Papatla submitted a report on the 20th.

He compared the "hints" with the question paper and considered that the similarity between them justified the conclusion that there had been a leakage.

It so happened that an ordinary meeting of the University Syndicate had been called for the 21st to

195-f

Thi Vi..-Chan-.

"/lo<, Utl:al

U•iveisity. and Ol.-i.lfs.

v:J S. 1'. Ulw&h

and mhm. ·

Bose J ..

t934

T1" I' ;,.:er.a.- cell", Ul/; Jll

U•ioMsily and OI ns.

•• S. I:. G "''h

ani '!)tlttrs.

consider certain other matters.

This question was not on the agenda but the last item was, "other matters, if any."

The Vice-Chancellor presided aml he told the members present what had happen.ed.

He had already prepared a note about this on the 21st before the meeting began.

After setting out the facts the note concluded-

"! request the syndicate to discuss the matter as it is an important and urgent one before taking up the publication of the M.B.B.S. results which are also ready, though the subject is not in the agenda."

The report of the Board of Examiners setting out the results of the examination was received on the morning of the 21st some time before the meeting. It showed that thirty seven students had appeared for the examination in question.

Of these, twenty seven passed and ten failed in the written examination and the same ten, plus one other (making eleven), failed in the practical and viva voce tests. In the result, eleven of the thirty seven failed and twenty six pasml. The petition for mandamus was made by the twenty six who had passed and eight who failed: thirty four in all.

The syndicate heard Lt. Col. Papatla at length and also examined three other persons, namely, Mr.

Bhairab Chandra Mahanty, who first gave the information, Dr. R. K. Mahanty, the internal examiner foi the M.B.B.S. and Dr. S. M.

Banerjee, President of the Board of Examiners. (Two members of the syndicate were experts in Anatomy, namely Lt. Col.

Papatla and Dr.

S. N. Acharya, the Civil Surgeon).

After carefully considering the question for some six hours. the members present passed the following resolution :

"That after enquiry, the syndicate is satisfied that there has been leakage of questions in Anatomy and that the result in Anatomy examination be cancelled and that another ex"mination in the subject be held commencing from the 7th May, 1951."

The svndicate consists of twelve members.

Of these, all but one Mr. Pradhan, the Director of Public Instruction, were present at the meeting.

Those present passed the resolution unanimously. It is admitted that Mr. Pradhan was not told that this as one of the matters which would be considered at the meeting.

This is one of the grounds on which the validity of this resolution is attacked.

The successful candidates entered a protest against the resolution and asked the syndicate to reconsider its decision.

This was on the 26th.

The Vice-Chancellor had already called another meeting of the syndicate for the 28th to consider other matters. Once again, this was not placed on the agenda but the Vice-Chancellor brought it up suo moto as before.

Again, eleven of the twelve were present but this time the absentee was Dr. M. Mansinha who had approved of the previous resolution.

The former absentee, Mr.

Pradhan, was present at this meeting.

For a second time the decision was unanimous and all eleven refus- . ed to review the former resolution.

It is admitted that Dr. Mansinha who was not there did not know that this, question would be consid.:red again.

The learned High Court Judges held that the want of notice in the two cases invalidated the resolutions. They examined the facts for themselves and. concluded that even if the evidence is sufficient to indicate a possibility of some leakage, there was "no justifica- 'tion for the syndicate to pass such a drastic resolution in the absence of proof of the quantum and the amplitude of leakage." They held that the syndicate had acted unreasonably and without due case. They therefore issued a mandamus directing the syndicate to take steps for the publication of the results.

The Vice-Chancellor and the others appeal.

The right of the syndicate to control the examinations, to scrutinise the results, to invalidate an examination for p:-oper reasons and to order a re-examinaction, when necessary, was not disputed.

In view of the mndertaking given the only points argued were the

Tlit VfreCari ..

ctllor, Utkal

University and Others.

S. K. C.'1osh

aiid Others..

nose],

r; ie Vice-Chancellor, Utkal

University and Others.

v S. K. Ghosh and Ol/1ers.

Bose].

two which the High Court decided against the University.

Several English authorities were cited about the effect of an omission to give notice to even one member of a body entitled to receive it, in particular a decisiqn of the Privy Council in Radha Krishan Jaikishan v. Municipal Committee, KhandflJa(' ). We do not think it nece:>sary to examine the general principle at any length because, in our opinion, this case is. governed by its own facts.

It may well be that when there is a statutory requirement about notice the provisions of the statute cannot be evaded or ignored_ It may also be, though we do not stop to enquire whether it is that when the constitution of a nonstatutory body requires notice to be given, then als0< there cannot be any relaxation of the rule.

The reason for the stricter rule laid down in the cases cited before us is that though an incorporated body like an University is a legal entity it has neither a living mind nor voice. It can only express its will in a formal way by a formal resolution and so can onlyact in its corporate capacity by resolutions properly considered, carried and duly recorded in the manner laid down by its constitution.

If its rules require such resolutions to be moved and passed in a meeting called for the purpose, then every member of the body entitled to take part in the meeting must be given. notice so that he can attend and express his views.

Individual assents given separately cannot be regarded as equivalent to the assent of a meeting because the incorporated body is different from the persons of which it is composed.

Hence, an omission to give proper notice even to a single member in these circumstances would invalidate the meeting and that in turn would invalidate resolutions which purport to have been passed at it. But this is only when such inflexible rigidity is imposed by the incorporating constitution.

The position is different when, either by custom or by the nature of the body or by its constitution and rules" greater latitude and flexibility are permissible. Each:

(1) 61 I.A. 125.

case must be governed by its own facts and no universal rule can be laid down; also it may well be that in the same body certain things, such as routine matters, can be disposed of more easily and with less formality than others.

It all depends on the nature of the body and its rules.

In the present case, there were not one but two meetmgs.

Proper notices of both meetings were issued to all the members including the two absentees. The only defect is that the matter we are concerned with was not included in the agenda of either meeting. We need not decide here whether this must always be done-there are English cases which indicate that that is not always necessary, see for example T lie King v.

Pulsford( '), La Compagnie De Mayville v. Whitley(') and Parker and Cooper Ltd v. Reading(•); also, in the present case one of the items in the agenda of both notices was "other matters, if any." But it is not necessary to go into that because in this case these members did in fact attend one or other of the meetings and expressed their views, not individually, but as members of a meeting which was considering the matter; and there was unanimity on both occasions.

Even on the stricter view taken in the cases relied on by counsel it is pointed out that want of due notice can be waived in given circumstances. Thus, if a person who was not noticed appears at the meeting and waives the irregularity, the defect is cured; so also when a person is too far away to be reached in time to enable him to communicate with the Committee before the meeting: the sending of a notice is then excused.

See Radlza Kislzan Jaikislzan v. Municipal Committee, Klzandwa(') and Young v. Ladies Imperial Club, Lim.(•).

The substance is more important than the form and if there is substantial compliance with the spirit and substance of the law, we are not prepared to let an unessential defect in form defeat what is otherwise a proper and valid resolution.

We, however, confine our

(1) rn8 E.R. !073-

(2) [1896] I Ch. 788.

(3) [1926) I Ch. 975

(4) 61 I.A. 125.

(5) 89 L.J.K.B. 563.

The Vit.e-Chan·

tellor, Utl.al

Un.iVlr.sity and Others.

S. K. Ghosh: and Others .

. Bo.seJ.

The Vire-Chancellor, Utkal

Univer!ily and Others.

S. K. Ghosh and Others.

remarks to the facts of this case where there was actual appearance without objection at meetings pmperly convened and where there was complete unanimity on both occasions.

Whether it would be proper to reach the same conclusion when there is a dissentient voice we are not prepared to say.

In our opinion, the High Court was wrong in holding that the two resolutions were invalid.

Whatever may be thought about each taken separately, the defects, if any, are, in our judgment, cured when the two are read together and regarded as a whole.

We also think the High Court was wrong on the second point.

The learned fudges rightly hold that in a mandamus petition the High Court cannot constitute itself into a court of appeal from the authority against which the appeal is sought, but having said that they went on to do just what they said they could not. The learned r udges appeared to consider that it is not enough to have facts established from which a leakage can legitimately be inferred by reasonable minds but that there must in addition be proof of its quantum and amplitude though they do not indicate what the yard-stick of measurement should be. That is a proposition to which we are not able to assent.

We are not prepared to perpetrate the error into which the learned High Court Judges permitted themselves to be led and examine the facts for ourselves as a court of appeal but in view of the strictures the High Court has made on the Vice-Chancellor and the syndicate we are compelled to observe that we do not feel they are justified.

The question was one of urgency and the Vice-Chancellor and the members of the syndicate were well within their rights in exercising their discretion in the way they did.

It may be that the matter could have been handled in some other way, as, for example, in the manner the learned r udges indicate, but it is not the function of courts of law to substitute their wisdom and discretion for that of the persons to whose judgment the matter in question is entrusted by the Law.

The University authorities acted honestly as reasonable and responsible

men confronted with an urgent situation are entitled to act.

They had experts of their own on their body.

They examined others "\Vho in their opinion might throw light on the incident.

They themselves compared tl:ie two papers and, after a deliberation of some six hours, arrived at an unanimous decision and then they reviewed the matter afresh at a second meeting with the assistance of one of their number who was not present on the first occasion. It is inaccurate to describe that as haste and unjust to characterise their action as unreasonable and lacbng due care.

This is decidedly not the sort of case in which a mandamus ought to issue. We accordingly set aside the order of the High Court.

We now come to the undertaking given on behalf of the Vice-Chancellor.

As we have observed, the syndicate reached the conclusion that there had been a leakage and so cancelled the examinations and ordered fresh ones.

Had the High Court not stepped in, those examinations would have be_en held nearly two and a half years ago and it is possible that all the students who were successful then would have passed again, or at any rate many of them would. But because of the High Court's order the examinations could not be held and the University was virtually directed to regard the examinations already held and the results already declared as good.

The result has been that the students who passed have been studying and sitting for examinations in the higher classes for some two and a half years.

If the status quo which would result from our setting aside of the High Court's order were to be resumed it would mean that those students would be put back to where they were two and a half years ago and would be compelled to do the courses which they have already covered all over again.

In order to avoid such injustice we were told at the outset by counsel on behalf of the Vice-Chancellor that the University did not want to penalise them and so gave us the following undertaking drafted by the appellants' counsel :

"The students who are declared to have passed' the first M. B. B. S. Examination of the Utkal University-

T h1 Jiice-C'Aan.

ce!lnr, l!tkal

University and Ot,.ers.

S.K. Gho; h

and Otrters,

Bose].

1954 r ht V ict-Chanrellor, Utkal

Clniversity and Others.

S. K. Ghosh and Others.

Bose].

_7anuary 20.

held in April, 1951, shall be deemed passed that examination and shall not appear again in Anatomy."

to have duly be required to

The appeal is allowed. The High Court's order is set aside and the petition for mandamus filed before it is dismissed, but without costs.

There will be no order about costs in this "court either.

Appeal allowed.

Agent for the appellants: Raiinder Narain.

Agent for the respondents Nos. 1-8, 10-16, 18-23 and 25-34: S. P. Varma.

JAGANNATH

JASW ANT SINGH AND OTHERS.

[MEHR

CHAND

MAHAJAN. C.J.,

MUKHERJEA,

S. R. DAs,

VIVIAN BosE and GHULAM HASAN. JJ.j Representation of the People Act (XL/II of 1951), s. 82- Election petition-Non-compliance with the provisions of s. 82- Proper party omitted frorn the list of respondents-Defect u1hcther fatal.

Held, (i) that non-con1pliance with the provisions of s. 82 of the Representation of the People Ac_t, 1951 (XLIII of 1951), and the omission of a proper party from the list of respondents is not fatal and the tribunal is entitled to deal \Vith the tnatter in accordance with the rules of the Code of Civil Procedure which have been ma<le expressly applicable; .

(ii) that it is one of the rules of construction that a provision similar to the one in s. 82 is not mandatory unless noncompliance \Vith it is made penal.

Order XXXIV, r. l, of the Code of Civil Procedure, referred to.

General principles governing the decision of election petitions discussed.

C1v1L APPELLATE JuRISDICTJON : Civil Appeal No. 100 of 1953.

Appeal by special leave from the Judgment and Order, dated the 27th November, 1952, of the High Court of Judicature, Punjab, Circuit Bench at Delhi in Civil Writ No. 65-D of 1952 arising out of the

S. D. Sekhri

G. H. Rajadhyaksha

S. K. GHOSH AND OTHERS

MAHAJAN

MuKHERJEA

S. R. DAs

VrVIAN BosE

HASAN JJ.

Constitution of India

art. 226

Vice Chancellor, Utkal

University

S. K. G'wsh

Bakshi Tek Chand

G. C. Mathur

H. Mohapatra

N. C. Chatterjee

S. Sawhney

R. Patnaik

Utkal University of Orissa

High Court of Orissa at Cuttack

article 226

10th of April, 1951

Jagannadhaclas

Pradhan

Orissa

Lingaraj Misra

Papatla

S. 1

Bhairab Chandra Mahanty

R. K. Mahanty

S. M.

Banerjee

Papatla

S. N. Acharya

7th May, 1951

Pradhan

M. Mansinha

Mansinha

S. K. C.'1osh

S. K. Ghosh

Vit.e-Chan·

tellor, Utl.al

Vire-Chancellor, Utkal

S.K. Gho

Raiinder Narain

S. P. Varma

JAGANNATH

JASW ANT SINGH

MUKHERJEA

VIVIAN BosE

GHULAM HASAN

Representation of the People Act

s. 82

s. 82

s. 82

the Code of Civil Procedure

s. 82

the Code of Civil Procedure

APPELLATE JuRISDICTJON


1954 r ht V ict-Chanrellor, Utkal

Clniversity and Others.

S. K. Ghosh and Others.

Bose].

_7anuary 20.

SUPREME COURT REPORTS [1954]

held in April, 1951, shall be deemed passed that examination and shall not appear again in Anatomy."

to have duly be required to

The appeal is allowed. The High Court's order is set aside and the petition for mandamus filed before it is dismissed, but without costs.

There will be no order about costs in this "court either.

Appeal allowed.

Agent for the appellants: Raiinder Narain.

Agent for the respondents Nos. 1-8, 10-16, 18-23 and 25-34: S. P. Varma.

JAGANNATH

JASW ANT SINGH AND OTHERS.

[MEHR

CHAND

MAHAJAN. C.J.,

MUKHERJEA,

S. R. DAs,

VIVIAN BosE and GHULAM HASAN. JJ.j Representation of the People Act (XL/II of 1951), s. 82- Election petition-Non-compliance with the provisions of s. 82- Proper party omitted frorn the list of respondents-Defect u1hcther fatal.

Held, (i) that non-con1pliance with the provisions of s. 82 of the Representation of the People Ac_t, 1951 (XLIII of 1951), and the omission of a proper party from the list of respondents is not fatal and the tribunal is entitled to deal \Vith the tnatter in accordance with the rules of the Code of Civil Procedure which have been ma<le expressly applicable; .

(ii) that it is one of the rules of construction that a provision similar to the one in s. 82 is not mandatory unless noncompliance \Vith it is made penal.

Order XXXIV, r. l, of the Code of Civil Procedure, referred to.

General principles governing the decision of election petitions discussed.

C1v1L APPELLATE JuRISDICTJON : Civil Appeal No. 100 of 1953.

Appeal by special leave from the Judgment and Order, dated the 27th November, 1952, of the High Court of Judicature, Punjab, Circuit Bench at Delhi in Civil Writ No. 65-D of 1952 arising out of the

Judgment and Order, <lated the 11th November, 1952, of the Election Tribunal at Delhi in. Election Petition No. 10 of 1952.

N. C. Chatterjee (A. N. Sinha, with him) for the appellant.

S. P. Sinha (R .. Patnaik, with him) for the respondent. 1954.

January 20.

The Judgment of the Court was delivered by MAHAJAN C. J .-This is an appeal by special leave against the decision of the Delhi Election Tribunal, dated the 11th November, 1952, in Election Petition No. 10 of 1952.

The appellant Jagan Nath was elected a member of the Delhi State Legislative Assembly from Constituency No. 25 (Roshanara) of the Delhi State.

The polling in this constitueQcy took place on the 14th January, 1952.

On the 26th April, 1952, which was the last date under the law for the presentation of an election petition, Jaswant Singh (respondent No. 1) presented such a petition before the Secretary of the Election Commission at New Delhi challenging the election, of the appellant and contesting the order of the Returning Officer rejecting his nomination paper.

In the petition he impleaded as respondents, Brahma Sarup, Ram Prashad Poddar and the appellant, Jagan Nath, but he omitted to implead, as required by section 82 of the Representation of the People Act, 1951, Baijnath, -0ne of the candidates, whose nomination had been accepted but who had withdrawn his candidature .subsequently.

On the 14th July, 1952, the Election Commissioner appointed an Election Tribunal comprising respondents 5 to 7.

This appointment was published in the Gazette of India on the 26th July, 1952, and the election petition after due publication was referred to the tribunal.

On the 26th August, 1952, which was the first date of hearing before the tribunal, the

<1 ppellant raised a preliminary objection that the omission to implead Baijnath, a duly nominated candidate as a respondent in the petition was fatal to its

Jagan Nath

Jaswant Singh

, and Others.

Jagan Nath v.

Jaswant Singh

and Others.

.\fahajan C. J.

maintainability.

The petitioner contended that Baij. nath was neither a necessary nor a proper party and that in any event the non-joinder of a party was not fatal to the petition in view of the provisions of Order I, rule 9, Civil Procedure Code. In the alternative, it was claimed that if it was considered that he was a necessary or a proper party, permission may be given to the petitioner to implead him.

The tribunal decided the preliminary point in favour of the petitioner and held that the non-joinder of Baiinath as a respondent was not fatal to the petition.

On the finding, however, that Bai1nath was a proper party to be impleaded in the case, the tribunal directed that he be added as a respondent in the petition and notice of the petition be served on him. In the view of the tribu'1al Baijnath was not a necessary party in the sense that in his absence no effective decisicn could be given in the case and that being a proper party, there was no obstacle to his being joined as a respondent even after the expiry of the period of limitation prescribed for making the petition.

The appellant being dissatisfied with this decision, made an application to the Punjab High Court under articles 226 and 227 of the Constitution of India for the issue of a writ of certiorari quashing the order of the tribunal on the ground that it was without jurisdiction and for an order that the election petition be dismissed as there was no valid petition before the Election Tribunal for trial.

This petition was summarily rejected by the High Court on the 27th November, 1952. On a petition presented to this court under article 136 of the Constitution, special leave was granted by this court.

In this appeal it was contended before us that the Election Tribunal was not a court of general jurisdiction, that it was established by the Representation of the People Act, 1951, for the special purpose of trying election petitions, that its jurisdiction was derived from the statute upon certain specified terms and conditions precedent contained in the statute itself and that it had no general and inherent powers of an

ex1stmg court and that being so, if the terms and conditions precedent prescribed by the statute were not complied with, it had no jurisdiction to act.

According to the appellant, the scheme of the Act was that no election could be called in question except by an election petition presented in accordance with the provisions of Part VI of the Act (section 80), and it was suj?gested that unless all the requirements of sections 81, 82, 83 and 117 were complied with, an election could not be questioned and that no subsequent addition or amendment of the petition after the expiry of the 14 days prescribed for presenting a petition was permissible.

It was further contended that the provisions of section 82 were explicit and mandatory and admitted of no exceptions and the petition n.ot being in accordance with the provisions of the law, there was no valid petition which the tribunal could proceed to try.

Lastly, it was contended that the provisions of the Code of Civil Procedure were applicable to the tiial of petitions but could not be of assistance in determining whether a petition had been validly presented The general rule is well settled . that the statutory requirements of election law must be. strictly observed and that an election contest is not an action at law or a suit in equity but is a purely statutory proceeding unknown to the common law and that the court possesses no common law power. It is also well settled that it is a sound princiole of natural justice that the success of a candidate who has won at an election should not be lightly interfered with and any petition seeking such interference must strictly conform to the requirements of the law.

None of these propositions however have any application if the special law itself confers authority on a tribunal to proceed with a petition in accordance with certai11 procedure and when it does not state the consequences of non-compliance with certain procedural reqmrements laid down by it.

It is always to oe borne in mind that though the election of a successful candidate. is not to be lightly interfered with, one of the essentials of that law is also to safeguard the purity of the election process and als<> 6-96 S.C. lndia/59.

Jagan-Nath

Jaswant Sinti

and Otht1s.

.Mahajat1 C,],

Jagan Nath

Jaswanl Singh

and Others.

Mahajan C. J.

to see that people do not get elected by flagrant breaches of that law or by corrupt practices.

In cases where the election law does not prescribe the consequence or does not lay down penalty for non-compliance with certain procedural requirements of that law, the jurisdiction of the tribunal entrusted with the trial of the case is not affected.

It is in these circumstances necessary to set out the different provisions of the Act relevant to the matter canvassed before us.

Part VI of the Act deals with "Disputes regarding Elections." Chapter I of this Part is the definition chapter.

Chapter II consists of six sections. Section 80 provides that no election shall be called in question except by an election petition presented in accordance with the provisions of this Part.

Section 81 provides that an election petition calling in question any election may be presented on one or more of the grounds specified in sub-sections (1) and (2) of sections 100 and

101 to the Election Commission by any candidate at such election or any elector in such form and within such time but not earlier than the date of publication of the name or names of the returned candidate or candidates at such election under section 67, as may be prescribed; that an election petition shall be deemed to have been presented to the Election Commission- "(a) when it is delivered to the Secretary to the Commission or to such other officer as may be appointed by the Election Commission in this behalf- ( i) by the person making the petition, or

(ii) by a person authorized in writing in this behalf by the person making the petition; or

(b) when it is sent by registered post and 1s delivered to the Secretary to the Commission or the officer so appointed."

Section 82 provides as follows:- "A petitioner shall join as respondent to his petition all the candidates who were duly nominated at the election other than himself if he was so nominated."

Section 83 states that an election petition shall contain a concise statement of the material facts on which the petitioner relies and shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure for the verification of pleadings.

It further provides that the petition shall be accompanied by a list signed and verified in like manner setting forth full particulars of any corrupt or illegal practice which the petitioner alleges, including as full a statement as possible of the names of the parties alleged to have committed such corrupt or illegal practice and the date and place of the commission of. each such practice.

Provision is also made in the section empowering the tribunal to obtain further particul.ars by allowmg an amendment.

Section 84 concerns the relief which a petitioner may claim, and

section 85 provides that if the provisions of sections 81, 83 or 117 are not complied with, the Election Commission shall dismiss the petition.

Power is however given to the Commission to condone delay in making the petition for sufficient cause.

Chapter III of Part VI deals with the trial of election petitions.

It consists of 21 sections.

Section 86 provides that if the petition is not dismissed under section 85, the Election Commission shall appoint an election tribunal for the trial of the petition.

Provision is then made for constituting the tribunal and the place where the trial should take place.

Section 90 prescribes the procedure to be followed by the tribunal.

Sub-section

(2) of section 90 is in these terms:-

"Subject to the provisions of this Act and of any rules made thereunder, every election petition shall be tried by the tribunal, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908, to the trial of suits."

Sub-s.ection ( 4) provides that notwithstanding anything contained in section 85, the tribunal may dismiss an election petition which does not comply with the provisions of sections 81, 83 or 117.

It is significant that both the Election Commission and the tribunal have been given powers in express

Jagan Nath

Jaswant Singh

and Others.

Mahajan C. J.

Jagan Nath v.

Jaswant Singh

and Others.

Mahajan C. J.

terms to dismiss an election petition which does not comply with the requirements of sections 81, 83 or 117, but no such powers are given to dismiss a petition in limine which does not comply with the provisions of section 82.

Such a petition can only be dismissed at the conclusion of the trial and on grounds sufficient to dismiss it (section 98).

Specific provisions have been made to ensure that allegations of corrupt practice etc. are not lightly or frivolously made by providing that the petition must be properly verified and the allegations contained therein stated with a certain amount of definiteness and accuracy and 1t 1s an express prov1S1on of Part VI itself that the procedure of the tribunal is to be governed by the Code of Civil Procedure and where a petition complies with sections 81, 83 or 117, the Commission is bound to refer the petition to an election tribunal and the tribunal, unless it is of the opinion that the petition is not in accordance with sections 81, 83 or 117, is bound to try it and decide it according to the provisions of law.

Provision has been made in section 90( 1) for any other candidate st!biect to the provisions of section 119, to have himself impleaded as a party in the case within a prescribed period. This provision indicates that the array of parties as provided by section 82 is not final and conclusive and that defects can be cured.

Provisions of sections 110, 115 and 116 of Chapter IV

of this Part also support this view. Section 110 provides the procedure for the withdrawal of a petition.

It says that any person who might himself have been a party may within 14 days of the publication of the notice of withdrawal in the official gazette apply to be substituted as a petitioner in the place of the party withdrawing it.

Section 115 provides that such a person can be substituted as a petitioner ori the death of the original petitioner while section 116 provides that if a sole respondent dies or gives notice that he does not wish to oppose the petition or any of the respondents dies or gives such notice and there is no other respondent who is appearing in the petition, the tribunal shall

cause notice of such event to be published in the official gazette and thereupon any person who might have been a petitioner may within 14 days of such publication apply to be substituted in the place of such respondent and oppose the petition and shall be entitled to continue the proceedings on such terms as the tribunal may think fit.

These provisions suggest that ii any proper party is omitted from the lists of respondents, such a defect is not fatal and the tribunal is entitled to deal with it under the provisions of the Code of Civil Procedure, Order I, rules 9, 10 and 13.

Baijnath was a candidate who had withdrawn his candidature and had not contestea the election.· By reason of his absence or presence having regard to the grounds on which the petition was based no prejudice was likely to result to the respondent No. 1 because the main ground on which the petition was based was that the petitionar's nomination paper had been wrongly rejected.

Baijnath did not ciaim that he had acquired any substantive rights by reason of the failure of the petitioner to implead him within the period prescribed and there is no question of depriving him of any such rights.

In our opinion, the tribunal rightly disallowed the preliminary objection.

Mr. Chatterjee, the learned counsel for the appellant, drew our attention to certain decisions given by the different election tribunals constituted under the Representation of the People Act, 1951, in support of his contention.

On a careful perusal of the different decisions given by the various election tribunals it appears that there is no uniformity of opinion between them on this point.

Conflicting opinions have been expressed by these tribunals. It is unnecessary to discuss all these decisions in detail.

It will be sufficient to say that we are in entire agreement with those decisions which have held that non-compliance with the provisions of section 82 is not fatal to the petition.

The matter has to be determined in accordance with the rules of the Code of Civil Procedure which have been made expressly applicable. ' Mr. Chatterjee laid emphasis on the decision of the Election Tribunal.

Lucknow, presided over by

Jagan .Nath v.

Jaswant Singh

and Others.

MahajanC.J.

Jagan .Nath v.

Jaswant Singh and Others.

Mahajan C. J.

Shri N. S. Lokur in Election Petition No. 287 of 1952 published in the Gazette of India dated 20th December, 1951, Part II, Section 3, page 1034.

In that case two persons who had been duly nominated as candidates but who had withdrawn their candidature were not impleaded as respondents as required by section 82 of the Representation of the People Act, 1951.

It was held that the non-joinder was fatal to the petition.

It was said that the wording of the Act is peremptory and mandatory and it makes it incumbent on the petitioner to join as respondents all candidates duly nominated and it gives him no option and the failure to do so involves rejection of the pet1t10n.

Reliance was placed on certain decisions of Election Tribunals given under the election rules in force under the Government of India Act, 1935, and the decision of another Election Tribunal, Quilon, , in Sri Ramchandra Nair. v. Sri Ramchandra Das reproduced at page 2396e, Gazette of India Extraordinary, Part I, Section l, dated the 11th of November, 1952.

It was said that unless all the requirements of rules 81, 82 and 83 are complied with the election cannot be questioned.

As regards the omission of section 82 from the provisions of sec•. ion 85, it was observed that the Election Commission an at once discover whether the provisions of sections 81, 83 and 117 are complied with but the same cannot be said about the requirements of section 82 and that the Election Commission will have to hold an inquiry as to who were the candidates duly nominated before determining whether all of them had been joined or not, that this burden of inquiry was not thrown on the Commission but it was left for the determination of the tribunal, and hence it was that section 82 was not included in section 85.

Both the reasons given oy the tribunal cannot, . in our opinion, be sustained.

The provisions of section 82 are in terms similar to the provisions of Order XX XIV, rule 1 of the Code of Civil Procedure.

Therein it is provided that all persons having an interest either in the mortgage security or in the right of redemption shall be joined as parries to any suit relating . to the

mortgage.

There is ample authority for the view that this is merely a directory provision and non-joinder of any party is not a fatal defect and a decree can be passed so far as the parties actually on record are concerned unless the party omitted is a necessary party in the sense that in his absence no relief could be given at all even as regards parties actually on record.

There is no valid reason for treating the word "shall" in section 82 in a manner different from the same word used in Order XXXIV, rule 1, Civil Procedure Code.

It is one of the rules of construction that a provision like this is not mandatory unless non-compliance with it is made penal.

As regards the dictum of the Lucknow Tribunal that no inquiry is required to be made in the case of non-compliance with the provisions of sections 81, 83 and 117 but that an inquiry would be necessary to determine whether certain parties were nominated c"ndidates or not, in our opinion it cannot stand scrutiny.

Whether a petition has been presented by a person who has purported to sign it or by someone else or whether an agent who has signed the petition is a duly authorized agent or not are as much matters of inquiry as the question of determination of the names of nominated candidates.

This fact can be easily determined by reference to the Returning Officer.

That this reasoning of the tribunal is not sound is fully demonstrated by a reference to the next case cited by the learned counsel and decided by the same tribunal presided over by Shri N. S. Lokur.

In that case the question arose whether the petition was July verified and whether it was accompanied by all the necessary lists required by secion 83 (2).

An elaborate inquiry had to be conducted to determine the point whether the petition was typed on blank paper signed by the petitioner or whether it was signed by him or some person authorized on his behalf after it had been typed.

It is thus clear that it is no valid explanation to say that section 82 was omitted from the provisions of section 85 simply on the ground that the Election Commission was absolved . from the duty of making elaborate inquiries at the stage when it had . to say whether the provisions of sections 81, 83 and

Jaga,. Natk

•· Jaswant Singh

and Others.

Mahajan C. J.

 1954

Jagan Nath

Jaswant Singh

and Others.

'Mahajhn C. J.

117 had been complied with. From the circumstance that section 82 does not find a place in the provisions of section 85 the conclusion follows that the directions contained in section 82 were not considered to be of such a character as to involve the dismissal of a petition in limine and that the matter was such as could be dealt with by the tribunal under the provisions of the Code of Civil Procedure specifically made applicable to the trial of election petitions.

The Bombay . Tribunal, presided over by Shri B. D. Nandkarni has taken a contrary view in Election Petition No. 72 of 1952, page 286, Gazette of India Extraordinary, dated the 5th February, 1953.

The issue in this case was whether Shri T. C. Patil, was a necessary party and whether by the omission to implead him the whole petition was bad. The tribunal held that the defect was not fatal.

In another case, Petition No. 113 of 1952, decided on 28th July, 1953, the majority of the Bombay Tribunal, decided otherwise. The view of the majority was that the mandatory nature of the provisions of section 82 itself contains within it the consequence of dismissal for non-compliance with its provisions and a separate provision for the dismissal of the petition for non-compliance with its provisions was not necessary and it would have been superfluous.

These observations run counter to the scheme of the Act itself as envisaged by section 85.

The provisions of section< 81, 83 and 117 are also mandatory and still in section 85 it is provided in specific terms that the Election Commission shall dismiss the petition if it is not in accordance with the provisions of those sections.

The tribunal is given a similar power by section 90( 4).

The member of the tribunal who dissented from the majority view gave cogent and sound reasons for holding that non-joinder of a duly nominated candidate who has withdrawn was not necessarily fatal to the petition.

In Election Petition No. 83 of 1952, decided by the Election Tribunal presided over by Shri B. C. Vakil, the tribunal took the view that such a defect was fatal.

A Division Bench of the Bombay High Court in Special

Civil Appeal No. 2017 of 1952; decided' on the 19th of December, 1952, allowed even a defective verification to be amended.

It is not necessary to express any final opinion on matters specifically covered by sections 81, 83 and 117 and dealt with by section 85 of the Act but at .the same time it is not possible to accept the view that in spite of the provisions of , section 85 failure to comply strictly with . the provisions of section 82 has the same consequences as are contained in section 85.

In our opinion the determination of the question whether the parties to the petition have been properly impleaded is a matter not for the Election Commission but for the tribunal. .Various provisions of the Act referred to above show that the election petition qoes not necessarily abate or fail by reason of the death of the petitioner or any of the respondents or hy their ceasing to take any interest in the trial of the petition once that petition has been referred to the tribunal.

On the other hand, any person who could be a petitioner can continue the petition in spite of the death of either the petitioner or the respondents to the petition and on the original parties failing to prosecute it.

These provisions have' been made to ensure that the election process on which the democratic system of Government is based is not abused or misused by any candidate and that inquiry is not shut out by collusion between persons made parties to the petition or by their respective deaths.

It is therefore clear that the provisions of the law relating to th!' impleading of parties are not necessarily fatal and can be cured.

It is for the tribunal to determine the matter as and when it arises in accordance with the provisions of the Code of Civil Procedure.

For the reasons given above we are of the opinion that the decisions of the tribunal and of the High Court in this case were right. We accordingly dismiss the appeal with costs.

Appeal dismissed.

Agent for the appellant:· N. H. Hingorani.

Agent for respondent No. 1: K. L. Mehta.

Ja_idh Nath

Jaswant Singh and Others.

Mahajan C. J.

Bose

Raiinder Narain

S. P. Varma

JAGANNATH

JASW ANT SINGH AND OTHERS

MAHAJAN

MUKHERJEA

S. R. DAs

GHULAM HASAN

Representation of the People Act

s. 82

s. 82

s. 82

the Code of Civil Procedure

s. 82

the Code of Civil Procedure

APPELLATE JuRISDICTJON

N. C. Chatterjee

A. N. Sinha

S. P. Sinha

MAHAJAN

Jagan Nath

Jaswant Singh

New Delhi

Brahma Sarup

Ram Prashad Poddar

section 82

Representation of the People Act, 1951

Baijnath

14th July, 1952

26th August, 1952

.\fahajan

Baij. nath

Civil Procedure Code

Baiinath

Punjab High Court

articles 226 and 227

Constitution of India

27th November, 1952

article 136

Representation of the People Act, 1951

section 80

sections 81, 82, 83 and 117

section 82

the Code of Civil Procedure

Jagan-Nath

Jaswanl Singh

Mahajan

Part VI of the Act

Section 80

Section 81

sections 100 and

101

Election Commission

section 67

Election Commission-

Section 82

Section 83

the Code of Civil Procedure

Section 84

section 85

sections 81, 83

Section 86

section 85

Section 90

section 90

Code of Civil Procedure, 1908

section 85

sections 81, 83

Election Commission

sections 81, 83

section 82

section 98

sections 81, 83

sections 81, 83

section 90( 1)

section 119

section 82

sections 110, 115 and 116

Section 110

Section 115

section 116

the Code of Civil Procedure

Chatterjee

Representation of the People Act, 1951

section 82

the Code of Civil Procedure

Election Tribunal.

Lucknow

N. S. Lokur

Section 3

section 82

Representation of the People Act, 1951

11th of November, 1952

section 82

sections 81, 83 and 117

section 82

section 82

section 85

section 82

the Code of Civil Procedure

section 82

Civil Procedure Code

Lucknow Tribunal

sections 81, 83 and 117

N. S. Lokur

section 82

section 85

sections 81, 83

Jagan Nath

Mahajhn

section 82

section 85

section 82

the Code of Civil Procedure

B. D. Nandkarni

T. C. Patil

28th July, 1953

section 82

section 85

section 85

section 90( 4)

B. C. Vakil

Bombay High Court

19th of December, 1952

sections 81, 83 and 117

section 85

section 85

section 82

section 85

the Code of Civil Procedure

N. H. Hingorani

K. L. Mehta

Ja_idh Nath


Ja11uary 29.

SUPREME COURT REPORTS

[1954J

KARNAL SINGH AND ANOTHER

f),

THE STATE OF PUNJAB.

[BHAGWATI, JAGANNADHADAS and

VENKATARAMA AYYAR JJ.J

Indian Penal Code (Act XLV of 1860), ss. 34 and 149-Scop<" of-Charge under s. 302 read with s. 149-Conviction under s. 302' 1ead tvith s. 34-Whether valid.

It was contended that the conviction of the appellants under s. 302, Indian Penal Code, read with s. 34 was illegal when they had been charged only under s. 302 read with s. 149 because the scope of s. 149 was different from that of s. 34, that while what s. 149 required was proof of a common object, it would be necessary under s. 34 to establish a common intention and that there- . fore when the charge against the accused was under s. 149, it could' not be convrted in appeal into one under s. 34.

Held, that it is true that there is substantial difference between the two sections but they also to some extent overlap an<l it is a question to be determined on the facts of each case \vhether the charge under s. 149 overlaps the ground covered by s. 34.

If the common object which is the subject.matter of the charge under s. 149 docs not necessarily involve a common inten tion, then the substitution of s. 34 for s. 149 might result in prejudice to the accused and ought not therefore to be permitted.

But if the facts to be proved and the evidence to be adduced with: reference to the charge under s. 149 would be the same if the charge were under s. 34, then the failure to charge the accused under s. 34 could not result in any prejudice and in such cases the . substitution of s. 34 for s. 149 must be held to be a formal matter ..

There is no such broad proposition of law that there can be no recourse to s. 34 when the charge is only under s. 149.

Whether such recourse can he had or not must depend facts of each case.

The facts of the present case \Varranted such a recourse.

Dalip Singh v.

State of Punjab (A.LR. 1953

S.C.

Barendra Kumar Ghosh v.

EmPeror (I.LR. 52 Cal. 197 Lachman Singh v. The State ([1952] S.C.R. 839) referred to.

on the-

364),.

P.C.),.

CruMINAL APPELLATE JuR1so1cr10N : Criminal Appeal No. 64 of 1953.

Appeal by special leave from the Judgment and Order dated the 9th June, 1953, of the High Court of Judicature for the State of Punjab at Simla (Falshaw and Kapur JJ.) in Criminal Appeal No. 60 of 1953

arising out of the Judgment and Order dated the 15th December, 1952, of the Court of the Additional Sessions Judge, Ferozepore, in Sessions Case No. 50 of 1952 and Trial No. 57 of 1952.

fai Copa! Sethi (R. L. Kohli, with him) for the appellants.

.Porus A. Mehta for the respondent. 1954.

January 29.

The Judgment of the Court was delivered by

VENKATARAMA AYYAR J.-This is an appeal by special lea\e by Karnaii Singh and Malkiat Singh against the judgment of the High Court of Punjab confirming their conviction by the Additional Sessions J i!dge of F erozepore under section 302, Indian Penal Code, and the sentence of death passed on them.

The facts as found by the courts below are as follows: There had been long standing enmity between the appellants and their party on the one hand and the deceased Gurbaksh Singh and his party on the other, resulting in a number ot crimes, nd proceedings in court.

On the 27th January, 1952, at about sunset time, Gurbaksh Singh was sitting inside his house on the sabath and his sister Mst. Bholan was .in the kitchen.

Then the a]cpellants and . their men came to the place armed with rins, got on the roof of the house of Gurbaksh Singh and challenged him to come out.

Gurbaksh Singh and Mst.

Bholan went to the kotha and bolted the door from inside. Then the appellants and their men made holes in the roof with spades, ignited inflammable materials, such as dry twigs, and threw them inside the kotha through the holes and set fire to the building.

Both Gurbaksh Singh and Mst. Bholan were caught inside and burnt to death.

A brother of Gurbaksh Singh called Dev, who had been at that time away, was, according to the prosecution, seized when he subsequently turned up, thrown into the flames and was also burnt to death.

Meantime one Gurnam Singh, P. W. 13, a cousin of Gurbaksh Singh and his neighbour, managed to slip out of the village and reported the occurrence at the police station at Nihal Singhwala,

Karnail Singk

a1td Another v.

The State of

Punjab.

V mkatarama Ayyar ] •

, K arnail Singh

and Another

The State of

Punjflb.

iV enkatarama

Ayyar J.

a place eight miles away (vide Exhibit PQ). It was then

10-30 P.M.

On receipt of this information, the police sub-inspector, P.W. 25, went to the village with a posse of constables and with Gurnam Singh.

He found the house mostly burnt and recovered therefrom the charred remains of three dead bodies and they were identified as those of Gurbaksh, Dev and Mst. Bholan.

The appellant Kamai! Singh was actually seen at that place and arrested on the spot.

Malkiat Singh who had been mentioned in Exhibit PQ as one of the pamc1pants was found in his house with gunshot wounds and was also arrested.

Eventually eight persons, including the appellants, were charged under section 148, Indian Penal Code, for forming an unlawful assembly with the object of burning the house oi Gurbaksh Singh and murdering him, Der and Mst.

Bholan, and under section 302 read with section 149 for their murder.

The Additional Sessions Judge, F erozepore, held that the case had not been established beyond doubt as against two of the accused and he accordingly acquitted them.

He convicted the six others including the appellants under section 148 and section 302 read with section

149. and sentenced them to death.

On appeal, the learned Judges of the Punjab High Court held that "although there can be no doubt whatever that the occurrence took place more or less on the lines described by the prosecution witnesses, and the primary object of the culprits must have been to murde" Gurbaksh Singh, deceased, in consequence of the bitter enmity. between him and the main body of the accused" and that "although it may very well be true that all the six appellants took part in this occurrence". the evidence against the four accused other than the appellants was insufficient to to sustain their conviction, as it consisted of the testimony of persons who were at a distance of 40 to 50 feet from the scene of occurrence and who claimed to identify the particular accused only by their voice.

They were accordingly acquitted.

Then dealing with the case against the two appellants they observed that as against t]:iem, there was evidence of the two eyewitnesses, Gurnam Singh (P. W. 13) and Maghar Singh

(P. W. 14), that Maghar Singh was not a reliable witness, that nothing could be urged against the evidence of Gurnam Singh, that even so it would be unsafe to base a conviction on his evidence alone, but that the presence of Karnail Singh at the spot and the existence of. wounds on the person of Malkiat Singh afforded sufficient corroboration of the evidence of Gurnam Singh.

They accordingly confirmed the conviction and sentence as against the appellants. As four of the accused were acquitted in appeal, the learned Judges set aside the conviction of the appell:mts under section 149 and substituted section 34, Indian Penal Code, therefor.

Two contentions: have been urged on behalf of the appellants, that the evidence which had been accepted by the learned Judges as reliable was insufficient to establish the guilt of the appellants and that their conviction under section 34 was bad as no charge had been framed against them under that _section .. On the first point, the argument of the learned counsel for the appellants was that having held that the only eye witness whose evidence was worthy of credence was P.W. 13, and that even his evidence could not be acted upon unless it was corroborated, the learned Judges were in error in holding that there was. such corroboration against the appellants.

The circumstance 'relied on by the. court below as corroborating the evidence of '[' .W. 13 was that the appellants were proved to have been present at the scene of occurrence. and there was no satisfactory explanation from .them therefor.

As regards Karnail Singh, the police subinspector, P.W. 25, actually found him emerging out of the burning house with a spear in his hand. He had injuries on his person and his pyjama was bloodstained.

He was arrested on the spot and the spear and the pyjama were seized and marked as Exhibits P-12 and P-20. As for Malkiat Singh, his name was mentioned in the first information report, Exhibit. PO,

and P.W. 25 went to his house and found him with gunshot wounds and arrested him.

In the statement given by Karnail Singh under section 342, Criminal Procedure Code, he stated that when he saw the house

Kamai[ Singh

and Aflf.Jthrr

The Statt _of

Punjab.

V enkatarama

AyyarJ.

Jl arnail Singh

and Anothtr v.

The State of Punjab.

V rnkatarama AyyarJ.

of Gurnam Singh on fire, he went there and was assaulted by culprits, that Malkiat Singh came there to help him, that when they were grappling with the culprits he was attacked and Malkiat Singh received a gunshot and thereafter they went away to their houses.

The statement of Malkiat Singh also was on. similar lines.

There was no evidence that any other person or persons were responsible for the acts and the learned Judges therefore rejected as untrue the explanation of the appellants that "they received these injuries while intervening against some unknown assailants on behalf of their bitterest enemy."

It is contended for the appellants that the mere . presence of Kamai! Singh at the place of occurrence would in itself mean nothing and that it would amount to corroboration only if some further act incriminatory in character was proved.

With reference to Malkiat Singh, it was argued that the existence of gunshot wounds would be inconclusive as there was no evidence as to how they were caused.

It was contended that the theory of the learned Judges that Gurbaksh Singh might himself have shot at him through the hole while he was on the roof was wholly unsupported by evidence and opposed to the medical evidence in the case as to the nature of the wounds and to the fact that no gun was recovered from the' house, and that there was accordingly nothing to connect Malkiat Singh with the incident at the house of Gurbaksh Singh.

With reference to the statements of the accused admitting their presence at the place but explaining that some culprits had set fire to the house and that they went there thereafter, it was argued that if the statements were to be taken into considr.ration they must be taken as a whole and that it was not proper to accept the incriminating portion and reject the exculpatory portion thereof and the observations of this court in Hanumant v.

Stat~ of Madhya Pradesh('), at page 1111 were relied on in , support of this position.

The result according to the appellants is that there was not sufficient

(1) [19521s.c.R.1091.

corroboration of the evidence of P. W. 13 to support their conviction.

It is necessary in view of this contention to examine the evidence in order to see what corroboration there is against each of the appellants. So far as Kamai!

Singh is concerned, his presence, at the scene of occurrence under the circumstances disclosed in the evidence is sufficient to corroborate the evidence of

P.W. 13.

It should be remembered that Gurnam Singh is not an approver. He is a witness against whom the learned Judges had nothing to say and if they required corroboration of his evidence it was because he was a relation of the deceased and it was considered not safe to base a conviction on his sole testimony.

The corroboration that is required in such cases is not what would be necessary to support the evidence of an approver but what would be sufficient to "lend assurance to the evidence before them, and satisfy them that the particular persons were really concerned in the murder of the deceased." (Vide Lachhman Singh

v. State(•)).

Kamai! Singh was arrested on the spot with a spear and a bloodstained pyjama, and these are pieces of evidence which would support the inference that he was concerned in the crime.

The case of Malkiat Singh presents greater difficulty.

He was arrested in his house with gunshot wounds on his person and unless it could be established that they were received at the scene of occurrence that would not be sufficient to connect him with the crime. We agree that the mention of his name in Exhibit PQ cannot be held to be sufficient corroboration because that is only the statement of P. W. 13 at an earlier stage and it is not independent evidence. With reference to the statement of the accused under section 342, Criminal Procedure Code, it is true that if it . is sought to be used as an admission it must be read as a whole; but where it consists of distinct and separate matters, there is no reason

~ why an admission contained in one matter should not be relied on without reference to the statements relating to other matters.

In this case the

(1) [1952] S.C.R. 839 at p. 845.

K arnail Singh

a11d Another

The Stalt of

Pu, Yab.

V enkatarama

AyJ<lr J.

K arnail Singh and :4.nothe.r

Tht State of

Purrjab.

V tnkatar(lma

A; yar J.

admiss.ion of the appellant that he was present at or near the scene of occurrence is distinct and separate from his explanation as tc how he received the 1111uries.

The learned fodges having disbelieved, in our opinion rightly, the statement of the appellant that the house was burnt by sorr.e unknown enemies of Gurbaksh Singh and that it was they who murdered him, we do not see any objection to the statement of the appellant that he was present at the scene of the occurrence from being used as an admission. Another piece of corroboration which the learned Judges relied on was that in their view the gunshot wounds must have been received .by Malkiat Singh at the house of Gurbaksh Singh.

They gave their finding on this point in the alternative.

They observed that the injuries might have been caused by Gurbaksh Singh firing from inside the house.

But of this there is no evidence and the medical evidence is in fact opposed to it and as already stated, no gun was recovered from the house of the deceased. In the alternative, they observed that the injuries might have been caused by a shot from one ot his own men.

This view is supported by the evidence of P. W. 14 who deposed that while the incidents were in progress Malkiat Singh stated that he had been shot by one of his own men and then left the place.

It is argued for the appellant that as the learned Judges had declined to act on the evidence of P. W. 14, the alternative suggestion must be ruled out as unsupported by evidence. What all the learned Judges remarked about P.W. 14 was that it was "impossible to place any very great reliance on Maghar . Singh's evidence". But then they also expressly referred to his evidence on this point (Vide page 61 of the record) and accepted it as one of the possible alternatives (Vide page 65). And on their finding that the injuries must have been received at the place of occurrence and the theory that Gurbaksh Singh fired the shot being negatived, there is no difficulty in hold~ ing that they were prepared to ac_cept the evidence of P. W. 14 on this point.

Thus there are ample materials for holding that the gunshot wounds were received by Malkiat Singh in the house of Gurbaksh Singh and

that is sufficient corroboration of the evidence of

P. W. 13.

In this view we must overrule the first contention.

Then the next question is w'.:ether the conviction of the appellant under section 302 read with section 34, when they had been charged o.Jy under section 302 read with section 149, was illegal. The contention of the appellants is that the scope of section 149 is differe:it from that 01 section 34, that while what section 149 requires is proof of a common object, it would be necessary ilnder section 34 to establish a common intention and that therefore when the charge against the accused is under section 149 it cannot be converted in appeal into one under section 34. The following observations of this court in Dalip Singh v.

State of Punjab(') were relied on in support of this position:-

"Nor is it possible in chi's case to have recourse to section 34 because the appellants have not been charged with that even in the alternative and the common intention required by section 34 and the common object required by section 149 a1 c far [ram being the same thing."

It is true that there is substantial difference between the two sections but as observed by Lord Sumner in Barendra Kumar Ghosh v. Emperor('), they also to some extent overlap and it is a question to be determined on the facts of each case whether the charge under section 149 overlaps the ground covered by section 34.

If the common object which is the subjectmatter of the charge under section 149 does not necessarily involve a common intention, then the substitution of section 34 for section 149 might result in prejudice to the accused and ought not therefore to be permitted.

But if the facts to be proved and the evidence • to be adduced with reference to the charge under section 149 would be the same if the charge were under section 34, then the failure to charge the accused under section 34 could not result in any

(x) A.I.R. 1953 S.C. 364 at p. 3f,6. (•) I.L.R.52 Cal. 197 (P.C.).

7-96 S.C. India/59 .

Karnaii 5inlllt a.a Aul;.lf

•• Till t.u (if

P..jo/J.

Kamail Sing!i

ona AtuJt:ier

Tht StaU of

Pu.if ab.

V 1nkatarama

Ayyar J.

prejudice and in such cases the substitution of section 34 for section 149 must be held to be a formal matter.

We do not read the observations in Dalip Singh v.

State of Punjab(') as an authority for the broad propmition that in law there could be no recourse to section 34 when the charge is only under section 149.

Whether such recourse can be had or not must depend on the facts of each case.

This is in accord with the view taken by this court in Lachhman Singh v. The State(') where the substitution of section 34 for section 149 was upheld on the ground that the facts were such "that the accused could have been charged alternatively either under section 302 read with section 149, or under section 302 read with section 34."

Examining the record from this point of view the findings are that both the appellants who had long standing enmity with Gurbaksh Singh, got on the roof of his house and set fire to it, with the deceased and Mst. Bholan couped up within.

If it was their object under section 149 to burn the house and cause the death of Gurbaksh Singh, that was also their intention under section 34.

On the facts of this case there can be no difference between the object and the intentio11 with which the offences were committed.

Our attention was also drawn to the wording of the charge

whicl, while mentioning section 149 also sets out that in prosecution of the common object the accused intentmnally set fire to the house and murdered GurbaKsh Singh and Mst.

Bholan.

We are satisfied that the substitution of section 34 in the place of section 149 in the charge by the court below has resulted in no prejudice to the appellant and it is there fore not open to objection.

The appeal fails and is dismissed. , Appeal dismissed.

Agent for the appellants: Nau nit Lal.

Agent for the respondent: R. H. Dhebar.

(1) A.J.R. 1953 S.C. 364.

(2) [1952] S.G.R. 839.

KARNAL SINGH AND ANOTHER

THE STATE OF PUNJAB

BHAGWATI

JAGANNADHADAS

Indian Penal Code

ss. 34 and 149

s. 302

s. 149

s. 302

s. 34

s. 302

Indian Penal Code

s. 34

s. 302

s. 149

s. 149

s. 34

s. 149

s. 34

s. 149

s. 34

s. 149

s. 34

s. 149

s. 34

s. 149

s. 149

s. 34

s. 34

s. 34

s. 149

s. 34

s. 149

Falshaw

Kapur

fai Copa! Sethi

R. L. Kohli

.Porus A. Mehta

Karnaii Singh

Malkiat Singh

High Court of Punjab

section 302

Indian Penal Code

Gurbaksh Singh

27th January, 1952

Bholan

Dev

Gurnam Singh

Karnail Singk

State of

Punjab

State of

Punjflb.

iV enkatarama

Gurnam Singh

Gurbaksh

Kamai! Singh

Malkiat Singh

section 148

Indian Penal Code

section 302

section 149

Additional Sessions Judge, F erozepore

section 148

section 302

section

149

Punjab High Court

Maghar Singh

Karnail Singh

section 149

section 34

Indian Penal Code

section 34

Karnail Singh

section 342

Criminal Procedure Code

State of Punjab

Kamai! Singh

Kamai

Singh

section 342

Criminal Procedure Code

Maghar . Singh

section 302

section 34

section 302

section 149

section 149

section 34

section 149

section 34

section 149

section 34

section 34

section 34

section 149

Sumner

section 149

section 34

section 149

section 34

section 149

section 149

section 34

section 34

Kamail Sing!i

ona AtuJt

Ayyar

section 34

section 149

section 34

section 149

section 34

section 149

section 302

section 149

section 302

section 34

section 149

section 34

section 149

GurbaKsh Singh

section 34

section 149

Nau nit Lal

R. H. Dhebar


S.C.R.

SUPREME COURT REPORTS 913

RAJ KRUSHNA BOSE

BINOD KANUNGO AND OTHERS.

fMEHR

CHAND

MAHAJAN

C. J., MuKHERJEA,

S. R. DAS,

VIVIAN BosE and GHULAM

HASAN JJ.]

Constitution of India, arts. 136 and 226-Representation of the people Act, 1951 (Act XL!ll of 1951), ss. 33(2), 99 105, 123 (8)-0rder of the tribunal under s. 105 declared as final and con; clasive-Whet!rer affects discretionary powers of Supreme Court at:d High. Courts under arts. 136 and 226-Elected candidate no111inated

or seconded by Governrnent servant-Legal effect thereof-Orders of tribunal, contents of.

(1) The unfettered discretionary powers conferred on the Supreme Court and the High Courts by arts. 136 and 226 of the Constitution respectively cannot be taken away or whittled dov.a

by the legislature and therefore s. I 05 of the Representation -Of the People Act, 1951, which provides that every order of the tribunal under the Act shall be final and conclusive did not affect such powers.

(2) In view of the provisions of s. 16 of the Representation of the People Act, 1950, and the provisions of ss. 33 (2) and 123 (8) of the Representation of the People Act, 1951, an election to a State Legislative Assembly is not invalidated when the elected member is either nominated or seconded or both by a Government servant or servants.

(3) The Supreme Court recorded its disapproval of the way in which the Election Tribunal shirked its duty and tried to take a short cut in deciding only two of the twelve issues framed and thus acted against the provisions of s. 99 of the Act.

CIVIL

APPELLATE

JURISDICTION : Civil Appeal No. 239 of 1953.

Appeal by special leave from the Order and Judgment dated the 5th September, 1953, of the Election Tribunal, Cuttack, in Election Case No. 5 of 1952.

S. B. fathar for the appellant.

S. P. Sinha (R. Patnaik, with him) for the respondent.

1954. February 4. The Judgment of Mahajan C.J .• Mukherjea, . Das and Ghulam Hasan JJ. was. delivered by Das J.

Vivian Bose J. delivered a separate Judgment.

DAs J.-The question here is whether an election to a State Legislative Assembly is invalidated when the

Ftb'uary 4.

195+

Raj KntSh11a

Bose v.

Bi'twd Kanungo and Others.

Da,].

member's nomination was either proposed or seconded, or both, by a Government servant or servants.

The appellant was e minister in the State of Orissa.

He was nominated as a candidate for the Orissa Legislative Assemblv and was later declared to have been elected.

One . of his rivals was the 1st respondent who filed an election petition challenging the election on a number of grounds, among them, the following.

The appellant had filed about two dozen nomination papers: In five of them the proposer was a Government servant and in four the seconder.

The 1st respondent stated that this was the first step in a scheme to get the assistance of Government oi!icers in furtherance of th<'.: appellant's election and to "use and utilise" them "for the purposes of the election." There were also other allegations which we need not consider here.

The appellant made counter allegations against the 1st respondent, whom he had defeated. but they do not concern us either.

The Election Tribunal framed twelve issues and examined 101 witnesses. but when it came to make its order it proceeded to decide only two issues instead of deciding the whole case. It held that as the proposers and seconders referred to above were admittedly Government servants that constituted a major corrupt practice and so invalidated the election under section 123(8) of the Representation of the People Act, 1951 (No. XLIII of 1951). The other of the two decided issues does not concern this appeal.

The appellant thereupon petitioned the High Court for a writ of certiorari under article 226 of the Constitution.

The High Court refused to interfere. The learned Judges held that there was no want of jurisdiction in the tribunal and that the tribunal's view ot the law was a possible and reasonable one, accordingly, as . the High Court was not a court of appeal from the tribunal, they were not called upon to decide the question as a ourt of appeal.

The appellant was granted special leave to appeal by this court against the order of the Election Tribunal.

A question of great public importance affecting Government ervants is involved and we deem it right to examine the question under our special jurisdiction under article 136. ·

The only sections we are called upon to consider are sections 33 (2) and 123 (8). The former provides that-·

"Any person whose name is registered in the electoral roll of the constituency and who is not subject to any disqualification mentioned in section 16 of the Representation of the People Act, 1950 (XLIII of 1950) may subscribe as proposer or seconder as many nomination papers as there are vacancies to be filled ... "

. According to the latter-

"The obtaining or procuring or abetting ........ by a <:andidate or his agent or, by any other person with the connivance of a candidate or his agent, any assistance for the furtherance of the prospects of the <:andidate's election from any person serving under the Government of India or the Government of any State other than the giving of vote by such person" shall be deemed to be a major corrupt practice for -the purposes of the Act. /c corrupt practice of this kind entails disqualification for membershi!J (section 140).

Section 33 (2) is genral and :onfers the privilege of proposing or seconding a candidate for election -0n every person. who is registered in the electoral roll provided he is not disqualified under section 16 of the Act of 1950.

That section excludes three classes of persons but not Government servants. unless of course they happen to fall within those classes.

Therefore, so far as section 33(2) is concerned, a Government servant is entitled to nominate or second a candidate for election unless he happens to fall in one of the three excluded categories.

The question is whether section 123 (8) takes away from Government servants that which section 33(2) gives to them. We do not think it does.

Viewing the question as a plain matter of construction, we find that when section 33(2) was framed those

Raj Krushna

Bose y.

BiMrl Kanungo

and Others.

Das].

UaJ Krushna

Bose

Ri11od Kanungo

arid Others,

DasJ.

who passed it had in mind the desirability of excluding certain classes of persons from its scope and they chose to limit those classes to three.

Therefore, in the absence of express provision to the contrary elsewhere, or unless it follows by necessary implication, the section must be construed to mean that those not .expressly excluded are intended to be included.

As Government servants are not in the excluded categories it follows that so far as this section is concerned they are not disqualified from proposing and seconding a candidate's nomination.

Now, does section 123 (8) contain express provision to the contrary or can such provision be inferred by necessary implication?

It is usual, when one section of an Act takes away what another confers, to use a nnn abstante clause and say that "notwithstanding anything contained in section so and so, this or that will happen", otherwise, if both sections are clear, there is a head-on clash.

It is the duty of courts to avoid that and, whenever it is possible to do so, to construe provisions which appear to conflict so that they harmonise.

What exactly does section 123 (8) forbid?

It is the obtaining or procuring etc., of "any assistance ..... . other than the giving of vote by such person." Therefore, it is permissible for a candidate to canvass Government servants for their votes and if a Government servant chooses to reveal his hand it would be permissible for the candidate to disclose the fact and use it in furtherance of his election. for the law imposes no secrecy on the intentions of those who of their owv free will, choose to say how they intend to vote. They cannot be compelled to disclose the fact and anv improper attempt to obtain such information would be a corrupt practice, but equally, they are not compelled to keep the fact secret if they do not wish to do so; nor is tl1e candidate. If therefore the law permits this, we find it difficult to see how in the same breath it can be said to have taken away the right expressiy conferred by section 33(2).

The policy of the law is to keep Government servants aloof from politics and al"> to protect them from being imposed on by those with

influence or in positions of authority and power, and to prevent the machinery , f Government from being used in furtherance of a candidate's return.

But at the same time it is not the policy of the law to disenfranchise them or to denude them altogether of their rights as ordinary citizens of tlie land. The balance between the two has, in our opinion, been struck in the manner indicated above.

But though it is permissible for a candidate to go that far, he cannot go further and if the procurement of Government servants to propose and second a nomination is part of a plan to procure their assistance for the furtherance of the candidate's prospects in other ways than by vote, then section 123(8) is attracted, for in that case, the plan, and its fulfilment, must he viewed as a connected whole and the acts of proposing or seconding which are innocent in themselves cannot be separated from the rest.

Our conclusion on the preliminarv issue may also be supported on another ground.

The maior corrupt practice referred to in clause (8) of section 123 consists in obtaining. or procuring or abetting or attempting to obtain or procure by a candidate or his agent etc., any assistance for the furtherance of the prospects of the candidate's election from any person serving under the Government of India or the Government of any State other than the giving of vote by such person.

In order, therefore, to bring a case within the mischief of that clause the assistance must be for the furtherance of the prospects of tl1e candidate's election.

Section 79(b) defines a candidate as meaning

"a person who has been or claims to have been nominated as a candidate at any election, and any such person shall be deemed to hav~ been a candidate as from the time when, with the election in prospect, he began to hold himself out as a prospective candidate."

Unless, therefore, a case falls within the latter half of the definition a person becomes a candidate under the first pan of the defipition only when he has been duly nominated as a candidate and the furtherance of

'Jidj 'Krushna

, Bdse ""' v. I liin"Bd Kanungo

an~ iJlhtrs. -· _:t DasJ.

R•j Kns/rM

Bose

Binod K(]fSUn10

ani Ot tJrs.

Dos.].

the prospects of a candidate's election must, therefore, in such case commence from after that stage. Although evidence was adduced on both sides, there has been no finding so far on questions of fact which may or may not bring the case within the second part of the definition. In the absence of such a finding the case must be regarded, for the purpose of the preliminary issue, as governed by the first part of the definition and as such the proposing and seconding by a Government servant cannot be regarded as "assistance for the furtherance of the prospects of the candidate's election." In this view of the matter also, the judgment of the Election Tribunal cannot be sustained.

We set aside the order of the tribunal and remit the case to the Election Commission with directions to it to reconstitute the tribunal which tried this case and to direct the tribunal to give its findings on all the issues raised 1nd to make a fresh order.

Our power to make such an order was not questioned but it was said that when the legislature states that the orders of a tribunal under an Act like the one here shall be conclusive and final (section 105), then we should not interfere.

It is sufficient to say that the powers conferred on us by article 136 of the Constitution and on the High Courts under article 226 cannot be taken awy or whittled down by the legislature.

So long as these powers remain, our discretion and that of the High Courts is unfettered.

We wish to record our disapproval of the way in which this tribunal shirked its work and tried to take a short cut.

It is essential that these tribunals should do t11eir work in foll.

They are ad hoc bodies to which remands cannot easily be made as in ordinary courts of law.

Their duty under section 99 is, "where any charge is made in the petition of any corrupt or illegal practice having been committed at the election"

to record

"a finding whether any corrupt or illegal practice has or has not been proved to have been committed ..... . and the nature of that corrupt or illegal practice."

Also,

"to give the names of all persons, if any, who have been proved at the trial to have been guilty of any corrupt or illegal practice and the nature of that practice."

Their duty does not end by declaring an election to be void or not because section 99 provides that in addition to that

"at the time of making an order under section 98 the tribunal shall also make an order etc ...... "

A number of allegations were made in the petition about corruption and illegal practices, undue influence and bribery.

It was the duty of the tribunal not only to enquire into those allegations, as it did, but also to complete the enquiry by recording findings about those allegations and either condemn or clear the candidate of the charges made.

We make no order about costs.

BosE J.-I agree on all but one point. I have :some doubt about the reason given by my learned brother which is based on the d<:hnition of "candidate" in the Act. I prefer not to express any opinion on :that one point.

Case remanded.

Agent for the appellant: Ratnaparkhi Anant Govind.

Agent for respondent No. 1. .-1.. D. Mathur.

SRI SRI SRI KISHORE CHANDRA SINGH DEO

'BABU GANESH PRASAD BHAGAT AND OTHERS.

[MuKHERJEA,

VIVIAN BosE,

GHULAM

HASAN and

VENKAIARAMA

AYYAR TJ.)

Indian Registration Act (XVI of 1908), ss. 32, 33-"Resides", .1neaning -of-Pou•er-of-attorney containing mistaken endorsement, .effect of-Applicability of ss. 32 and 33 to such a case-Legal .effect of decision under s. 33(1), proviso (i).

Kaj Krus/ma

Bose

Binod Kanungo

and Others,

la.r J.

Marth 9.

913

RAJ KRUSHNA BOSE

BINOD KANUNGO AND OTHERS

MAHAJAN

MuKHERJEA

S. R. DAS

HASAN JJ.

Constitution of India

arts. 136 and 226

Representation of the people Act, 1951

ss. 33(2), 99

s. 105

arts. 136 and 226

Supreme Court

arts. 136 and 226

Representation -Of the People Act, 1951

s. 16

Representation of the People Act, 1950

ss. 33

Representation of the People Act, 1951

s. 99

S. B. fathar

S. P. Sinha

R. Patnaik

Mahajan

Mukherjea

Das

Ghulam Hasan

Vivian Bose

Raj KntSh11a

Bose

Bi'twd Kanungo

Orissa Legislative Assemblv

section 123(8)

Representation of the People Act, 1951

article 226

article 136

sections 33

section 16

Representation of the People Act, 1950

Government of India

section 140

Section 33

section 16

section 33(2)

section 123

section 33(2)

section 33(2)

section 123

section 123

section 33(2)

section 123(8)

section 123

Section 79(b)

Binod K(]fSUn10

Election Commission

section 105

article 136

article 226

section 99

section 99

section 98

Ratnaparkhi Anant Govind

D. Mathur

VIVIAN BosE

GHULAM

HASAN

VENKAIARAMA

AYYAR

Indian Registration Act

ss. 32, 33

ss. 32 and 33

s. 33(1)

Kaj Krus

Binod Kanungo