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Sujaniram Daryaosingh Vs. Lal Shyamshah and Lal Bhagwan Shah and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Judge
Reported in1956CriLJ256
AppellantSujaniram Daryaosingh
RespondentLal Shyamshah and Lal Bhagwan Shah and ors.
Excerpt:
.....court to interpret the statute as best it may. in so doing the court may no doubt assist themselves in the discharge of their duty by any literary help they can find, including of course the consultation of standard authors and reference to well-known and authoritative dictionaries. we are satisfied that the declaration was verified in accordance with rule 6 and that the rejection of the nomination paper was illegal. prayagsingh was anxious to contest the election and believed that he had a fair chance of success. i imagined that as i was better educated than the other candidates, i had a good chance of being elected as a member of the assembly. i filed this election petition because i desired that an educated man like prayagsingh should have been returned as a candidate in the assembly..........judge on the date of the notification. the subordinate judges now are described as civil judges shri kashiram is now a civil judge. by virtue of the notification, he continues to be a magistrate of the first class. his powers as a magistrate of the first class have not been withdrawn by the state government under section 41 of the code.shri kashiram was first invested with the powers to try sessions cases in june 1950 and was appointed as an additional judge of the court of session in the chhindwara sessions division by government notification no. 1576-1579/xviii-b-j., dated 16-6-1950, which is as follows:in exercise of the powers conferred by article 233 of the constitution of india, the governor of madhya pradesh is pleased to appoint shri kashiram, civil judge, chhindwara,.....
Judgment:
ORDER

1. This is an application by Sujaniram under Article 226 of the Constitution for a writ, order or direction quashing the order, dated 16-11-1952, passed by the Election Tribunal, RaJ-nandgaon (respondent 4), and for a writ prohibiting the Election Commission of India, New Delhi (respondent 5) from holding a fresh election.

2. Chauki Constituency in the district of Durg has one seat reserved for the Scheduled Tribes. The candidates for election in 1951 were the petitioners Sujaniram, Lal Shyamshah (respondent 1) and Prayagsingh (respondent 2). They are members of the Scheduled Tribes,

3. A nomination paper of a candidate for the reserved seat has to be accompanied by a declaration that he is a member of the Scheduled Tribes for which the seat has been reserved. He has also to specify the particular tribe of which he is a member and also the area in relation to which such tribe is one of the Scheduled Tribes.

The declaration has to be verified by a Magistrate under E. 6. Representation of the People (Conduct of Elections and Election Petitions) Rules, 1951 (hereafter called the Rules)

4. The candidates filed their nomination papers before the Returning Officer, Durg on 15-11-1951. The declaration of Prayagsingh was verified by Shri Kashiram who described himself as an Additional District and Sessions Judge. It bore the seal of the Court of the Additional Sessions Judge.

The scrutiny of these nomination papers took place on 17-11-1951 at Durg. The nomination paper of Prayagsingh was rejected on the ground that the declaration was not verified by a Magistrate. The Returning Officer held that Shri Kashiram was not a 'Magistrate' within the meaning of Rule 6.

5. The election of tne Chauki Constituency took place on 2-12-1951. The petitioner was declared elected. The votes polled by the petitioner and Lal Shyamshah were 10,717 and 10592 respectively.

6. Ramlal (respondent 3) who is a voter in the Chauki Constituency, filed a petition on 11-3-1952 challenging the election of Sujaniram and asked for a declaration that the election from the Chauki Constituency for the Legislative Assembly, Madhya Pradesh, was wholly void. The main ground of attack was that the Returning Officer had illegally rejected the nomination paper of Prayagsingh and that the declaration made by the latter was in accordance with Rule 6 of the Rules, Shri Kashiram was a Magistrate within the meaning of that Rule.

The petition was opposed by Sujaniram. He urged that the nomination paper of Prayagsingh was defective in three particulars and was rightly rejected, that the result of the election was not materially affected by the rejection of the nomination paper and that Prayagsingh was an alternative candidate for Lal Shyamshah and had worked for him.

7. The Election Tribunal accepted the contention of Ramlal and held that the declaration was valid and that Shri Kashiram was a Magistrate at the time he verified the declaration. The majority view of the Tribunal was that the illegal rejection of the nomination paper of Prayagsingh by the Returning Officer had materially affected the election. The Chairman took a contrary view regarding the effect of the rejection of the nomination paper. The election of the Chauki Constituency was declared to be void by the Tribunal.

8. Shri R. M. Hazarnavis, learned Counsel for Sujaniram (petitioner) contends that the Election Tribunal was manifestly wrong in holding that Shri Kashiram was a Magistrate and that the declaration was valid. He also contends that the burden of establishing that the rejection had materially affected the election was on Ramlal and that burden he failed to discharge.

There Was no basis for the conclusion reached by the two members of the Tribunal. He does not press his objection contained in para 4(b) and (c) of the application. He refers to Section 100 (1)(c) of the Act of 1951 which is in the following terms:

If the Tribunal is of opinion-

(c) that the result of the election has been materially affected by the improper acceptance or rejection of any nomination, the Tribunal shall declare the election to be wholly void.

It is not sufficient, according to him, to establish that the rejection was improper. The order of the Tribunal is without jurisdiction.

9. Shri M.N. Phadke raised a preliminary objection regarding the maintainability of the application. His first ground is based on Article 329 (b) of the Constitution which is in the following terms:

Notwithstanding anything in this Constitution- (b) No election to either House of Parliament or to the House or either House of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate Legislature.

His second ground is that the powers under Article 226 cannot be exercised as no legal right has been infringed. The right to vote, according to him, is not a civil right. It is a special right and the remedy must be regulated by the law dealing with elections. He strongly relies on a decision of the Supreme Court in - 'Ponnuswami v. Returning Officer Namakkal Constituency' : [1952]1SCR218 That decision says:

The right to vote or stand as a candidate for election is not a civil right but is a creature of statute or special law and must be subject to the limitations imposed by it. Strictly speaking, it is the sole right of the Legislature to examine and determine all matters relating to the election of its own members and if the Legislature takes it out of its own hands and vests in a special tribunal an entirely new and unknown jurisdiction, that special jurisdiction should be exercised in accordance with the law which creates it.

Where a right or liability is created by a statute which gives a special remedy for enforcing it the remedy provided by that statute only must be availed of.

He also refers to the observation in - 'The State of Orissa v. Madan Gopal' : [1952]1SCR28 :

The language of the Article shows that the issuing of writs or directions by the Court is not founded only on its decision that a right of the aggrieved party under Part III of the Constitution (Fundamental Rights) has been infringed. It can also issue writs or give similar directions for any other purpose.

The concluding words of Article 226 have to be read in the context of what precedes the same. Therefore the existence of the right is the foundation of the exercise of jurisdiction of the Court under this Article.

On merits, he urges that the decision of the Tribunal regarding the interpretation of the term 'Magistrate' is correct and that the illegal rejection of the nomination paper had materially affected the election.

10. We do not consider it necessary to decide the objections raised by Shri Phadke in view of our conclusion that the application must fall on merits. It is not necessary to examine the scope of Article 338 (b) and the effect of the decisions of the Supreme Court. We will assume far the purpose of this application that this Court has power under Article 226 to question the order of the Election Tribunal dismissing or allowing an election petition.

11. The proviso to Sub-section (3) of Section 33 of the Act requires a candidate to file his nomination paper accompanied by a declaration duly verified by a Magistrate. A nomination paper is liable to be rejected if there has been a failure to comply with any of the provisions of Section 33: see Section 36(d) The material portion of Rule 6 runs as fllows:

In a constituency where any seat is reserved for the.... Scheduled Tribes ...the declaration referred to in the first or the second proviso, as the case may be, to Sub-section (S) of Section 33 shall be verified by the candidate on oath or solemn affirmation before a Magistrate....

The verification by a Magistrate is to be made in the following terms:

Solemnly affirmed before me by ...who is personally known to me (or who has been identified to my satisfaction by ...(Name).... Address).

Signature of Magistrate

Full designation....

Date....

12. The term 'Magistrate' has not been defined either in the Act or in the Rules. Rule 2(6), however, says that 'the General Clauses Act 1897 (10 of 1897) shall apply for the interpreta. tion of these rules as it applies for the interpretation of an Act of Parliament. The definition given in Section 3(32), General Clauses Act is as follows:

'Magistrate' shall include every person exercising all or any of the powers of a Magistrate under the Code of Criminal Procedure for the time being in force.

The argument of Shri Hazarnavis is that Shri Kashiram is not a 'Magistrate' within the meaning of this definition as he did not exercise all or any of the powers of a Magistrate under the Code of Criminal Procedure. He points out that the State Government has power to appoint persons to be Magistrates of either First, Second or Third Class under Section 12 of the Code. The definition in the General Clauses Act applies to persons so appointed by the State Government.

He says that the Code of Criminal Procedure recognises three classes of Courts, High Court Courts of Session and the Courts of Magistrates. In the absence of an appointment under Section 12, a Sessions Judge or an Additional Sessions Judge cannot be regarded as a Magistrate. The fact that while disposing of an appeal, the Court of session is limited to the powers of punishment exereisable by the Magistrate at the trial does not make the person exercising such powers a Magistrate.

13. Shri Kashiram, when he verified the declaration, was a Magistrate under the Court of Criminal Procedure. All Subordinate Judges were invested with the powers of a Magistrate off the First Class by the Provincial Government on confirmation. The relevant notification No. 2704-122-XIX, dated 12-12-1944 issued by the Government is as follows:

In exercise of the powers conferred by Sub-section (1) of Section 12 read with Section 39, Criminal P.C. 1888 (5 of 1898), the Provincial Government is pleased to direct that all Subordinate judges shall, on confirmation, stand invested with the powers of a Magistrate of the first class.

Shri Kashiram was a confirmed Subordinate judge on the date of the notification. The Subordinate Judges now are described as Civil Judges Shri Kashiram is now a Civil Judge. By virtue of the notification, he continues to be a Magistrate of the first class. His powers as a Magistrate of the first class have not been withdrawn by the State Government under Section 41 of the Code.

Shri Kashiram was first invested with the powers to try Sessions cases in June 1950 and was appointed as an Additional Judge of the Court of Session in the Chhindwara Sessions division by Government notification No. 1576-1579/XVIII-B-J., dated 16-6-1950, which is as follows:

In exercise of the powers conferred by Article 233 of the Constitution of India, the Governor of Madhya Pradesh is pleased to appoint Shri Kashiram, Civil Judge, Chhindwara, to be an Additional Judge of the District Court in the Chhindwara civil district and Additional Judge of the Court of Session in the Chhindwara Sessions division with effect from the date on which he takes over charge of his duties.

Later, he was transferred to Durg. A notification in similar terms was issued appointing him as an Additional Judge of the District Court in the Durg Civil District and Additional Judge of the Court of Session in the Durg Sessions division. The notification No. 2133-2187/XVII-B dated 30-8-1951, is as follows:

In exercise of the powers conferred by Article 233 of the Constitution of India, the Governor of Madhya Pradesh is pleased to appoint Shri Kashiram, Civil Judge, Durg, to be an Additional Judge of the District Court in the Durg Civil District and Additional Judge of the Court of Session in the Durg Sessions division with effect from the date on which he takes over charge of his duties.

It will be noticed that the notifications appointing him as Additional Judge of the District Court and Additional Judge of the Court of Session did not cancel his powers of a Magistrate of the first class. The fact that he is now invested with higher powers does not divest him of the powers conferred on him by the notification No. 2704-122-XIX, dated 12-12-1944.

He is competent to exercise the Sessions powers as also the powers of a Magistrate of the first class. The doctrine of merger does not apply. In fact, Section 40 of the Code contemplates that a person may have two sets of powers. That section is as follows:

Whenever any person holding an office in the service of Government who has been invested with any powers under this Code throughout any local area is appointed to an equal or higher office of the same nature, within a like local area under the same Provincial Government, he shall, unless the Provincial Government otherwise directs or has otherwise directed, exercise the same powers in the local area in which he is so appointed.

We hold that Shri Kashiram was a Magistrate and was competent to verify the declaration made by Prayagsingh as a Magistrate.

14. Assuming that Shri Kashiram ceased to be a Magistrate on his appointment as Additional Sessions Judge the question is whether he is not a Magistrate as defined in Section 3(32) General Clauses Act. It will be noticed that the words 'shall include' and not 'shall mean' have been used in the definition. It is thus an inclusive definition

In 'Dilworth v. Commr. of Stamps' (1899) AC 99 (c) it is laid down that the word 'Include' or 'shall be deemed to include' is very generally used in interpretation clauses in order to enlarge the meaning of words or phrases occurring in the body of the statute, or where it is intended that while the term denned should retain its ordinary meaning its scope should be widened by specific enumeration or certain matters which its ordinary meaning may or may not comprise so as to make the definition enumerative and not exhaustive, and when it is so used, these words or phrases must be considered as comprehending not only such things as they signify according to their natural import, but also those things' which the interpretation, clause declares that they shall include (sic) In - 'Bapu Vithal v. Secy of State' AIR 1932 Bom 370, a Division Bench held:

Where a term is interpreted in a statute as 'including', the comprehensive sense is not to be taken strictly defining what the meaning of the word must be under all circumstances but merely as declaring what things may be comprehended within the term where the circumstances require that they should.

In 'In re Strauss & Co., Ltd.' AIR 1937 Bom 15, it was held:

The word 'include' in the interpretation clause is intended to be enumerative and not exhaustive. It has an extending force and it does not limit the meaning of the term to the substance of the definition. When it is intended to exhaust the signification of the word interpreted, the word 'means' is used.

In 'Panchanatham Pillai v. Emperor' AIR 1929 Mad 487, it was held that the definition of 'Magistrate' in the General Clauses Act is not confined to Magistrates exercising Jurisdiction under the Criminal Procedure Code. It merely includes them.

15. When a definition is intended to be exhaustive, the Legislature, as a rule, uses the word 'means' and not the word 'includes' In - 'Maha Ram v. Emperor' : AIR1918All168 it was held that the word 'Christian' in Section 3 Christian Marriage Act was defined to mean persons professing the Christian religion and that the word 'means' was an inclusive term and therefore no one except a person who professed the Christian religion came within it.

16. As the term 'Magistrate' in the definition given in the General Clauses Act is not limited to Magistrates appointed under the Code, it is permissible to find out its meaning in the ordinary sense. In - 'Camden (Marquis) v. Inland Revenue Commr.' (1914) 1 KB 641 Cozens-Hardy M.R. said:

It is for the Court to interpret the statute as best it may. In so doing the Court may no doubt assist themselves in the discharge of their duty by any literary help they can find, including of course the consultation of standard authors and reference to well-known and authoritative dictionaries.

The definition of 'park' in the Oxford English Dictionary has been approved and adopted by the Court in - 'Ripon Housing Order, 1938 In re' (1939) 2 KB 838. In recent times, dictionaries have been freely made use of by Courts in determining the meaning of various words occurring in statutes: See - 'Wamanrao Deorao v. Shrikumar Jaikumar' AIR 1946 Nag 42: - 'Beohar Singh v. Commr of Income-tax' ; - 'Nisha Kanto v. Smt. Saroj Bashini' : AIR1948Cal294 ; and - 'Harish Chandra v. Rex' AIR 1949 All 15.

In the Oxford English Dictionary, the meaning given is that a Magistrate is a civil officer charged with the administration of the laws. In the Webster's International Dictionary one of the meanings assigned to the expression 'Magistrate' is that he is a person clothed with powers as a public or civil officer. According to the Chamber's twentieth Century Dictionary, a Magistrate is a person entrusted with the power of putting the laws into force, Shri Kashiram as an Additional Sessions Judge was undoubtedly administering and enforcing law.

He is a Civil Officer of the State and is empowered to administer oath or affirmation to persons under the Indian Oaths Act. He is, therefore, a Magistarte within the meaning given in the dictionary. Further, when an Additional Sessions Judge or a Sessions Judge hears an appeal from the decision of a Magistrate of the first class, his powers of administering punishments are circumscribed by that of the trial Magistrate.

He is then exercising the powers of a Magistrate in respect of punishments. The case cited by Shri Hazarnavis reported in - ' Emperor v. Ali' 5 Ind Cas 915 in support of the contention that a Sessions Judge is not a Magistrate empowered under Section 190 is not applicable to the present case. There the Sessions Judge passed an order:

I direct the police to make further enquiry into his conduct under Section 156, Criminal P.C.

In Section 156 of the Code, the term 'Magistrate' alone is used. The Sessions Judge was manifestly in error as it is only a Magistrate empowered under Section 190, who may order an investigation under that section. Whenever the expression 'Magistrate' is used in any particular section of the Code, the reference is to a Magistrate appointed under Section 12 of the Code.

Here we are not (Sealing with any provision of the Code, but with the definition given in the General Clauses Act. In this view, it is not necessary to examine the argument of Shri Hazarnavis that an Additional Sessions Judge or a Sessions Judge is not a justice of the peace, as held by the majority of the Tribunal. We are satisfied that the declaration was verified in accordance with Rule 6 and that the rejection of the nomination paper was illegal.

17. The next question is whether the result of the election was materially affected by the illegal rejection of the nomination paper. We have perused the written statement of Prayagsingh as also his evidence and that of the witnesses of Sujaniram. Prayagsingh was anxious to contest the election and believed that he had a fair chance of success. In his evidence he says:

I would have contested the election as a candidate if my nomination paper had not been rejected by the Returning Officer.... I have studied upto the B. A. class. I imagined that as I was better educated than the other candidates, I had a good chance of being elected as a member of the Assembly.

After the rejection of his nomination paper, he made a petition under Article 226 of the Constitution to this Court. It is only after it was dismissed that he worked for Lal Shyamshah. Prayagsingh was a candidate from the party known as Ramrajya Party, while Lal Shyamshah stood as an independent candidate. Sujaniram was a candidate of the Congress Party. Ramlal in his evidence says:

I filed this election petition because I desired that an educated man like Prayagsingh should have been returned as a candidate in the Assembly from our Constituency which is predominantly populated by the Scheduled Tribes.... I imagine that if Prayagsingh had also been a candidate, he would have been elected.

It appears to us that if Prayagsingh had contested tile election, the voting would have been affected materially. We do not agree with the Chairman that the votes cast for Lal Shyamshah would have been cast for him. One cannot predicate with certainty that some of the persons who voted for Sujaniram would not have voted for Prayagsingh if the latter had contested the election. Their votes might have been east in his favour in preference to Sujaniram.

The fact that Prayagsingh was at one time in the service of Lal Shyamshah or that Ramlal is an employee are not relevant considerations. There is evidence to sustain the conclusion of the majority view of the Tribunal. We do not accept the contention of Shri Hazarnavis that there is no legal evidence for the finding. Under Section 100(1)(c), if the Tribunal is of opinion that the result of the election has been materially affected by the improper acceptance or rejection of any nomination, the Tribunal shall declare the election to be wholly void.

The question whether the result is materially affected fell within their exclusive jurisdiction and is one of fact. In exercise of the powers under Article 226, this Court does not function as a Court of appeal on questions of fact. As the finding is not vitiated by any error of law, the petition fails.

18. The application is dismissed with costs. Counsel's fee Rs. 100/-.


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