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Kazi Ali Haidar Vs. Upendra Nath Kundu - Court Judgment

LegalCrystal Citation
SubjectElection
CourtKolkata
Decided On
Reported inAIR1939Cal662
AppellantKazi Ali Haidar
RespondentUpendra Nath Kundu
Cases ReferredMondal v. Aghore Chandr Ganguly
Excerpt:
- .....offence punishable under section 28 to 33 except on the complaint of a person whose name is on the electoral roll.2. the complainant is not a voter in ward no. 4. mr. mukherjee's contention is that the electoral roll referred to in the section is the list of voters of the particular ward in which the election has taken place. in support of this contention reliance was placed upon the decision of my learned brother and myself in nara narayan mondal v. aghore chandr ganguly (1935) 39 c.w.n. 971. in that case we were dealing with quite a different problem the meaning of the words 'any person qualified to vote at the election to which such question refers' found in section 36 of the act. that is a matter which does not arise in connexion with the present case. the provisions with regard to.....
Judgment:

Henderson, J.

1. This is a rule calling upon the District Magistrate of 24-Parganas to show cause why certain proceedings against the petitioner should not be quashed. There was a bye-election in Ward No. 4 of the Barrackpur Municipality. The petitioner headed the poll and was one of the two candidates deolared to be elected. The complainant, who had just been unseated on an election petition had the mortification of finding himself at the bottom of the poll. No steps were taken by him to challenge the election but he instituted criminal proceedings against the petitioner and the other successful candidate charging them with offences under Section 29, Bengal Municipal Act, in connexion with the election. No such charge was made against the other unsuccessful candidates. The petitioner then obtained this rule. The first ground upon which the rule was issued was that the Magistrate had no jurisdiction to take cognizance of the offence on a complaint made by this complainant. The controlling Section is Section 34, the relevant portion of which is in these terms:

No Magistrate shall take cognizance of any offence punishable under Section 28 to 33 except on the complaint of a person whose name is on the electoral roll.

2. The complainant is not a voter in Ward No. 4. Mr. Mukherjee's contention is that the electoral roll referred to in the Section is the list of voters of the particular ward in which the election has taken place. In support of this contention reliance was placed upon the decision of my learned brother and myself in Nara narayan Mondal v. Aghore Chandr Ganguly (1935) 39 C.W.N. 971. In that Case we were dealing with quite a different problem the meaning of the words 'any person qualified to vote at the election to which such question refers' found in Section 36 of the Act. That is a matter which does not arise in connexion with the present case. The provisions with regard to the electoral roll are to be found in Section 21 of the Act. Sub-section (1) of that Section is in these terms:

A Committee consisting of the Chairman and two Commissioners to be appointed by the Commissioners at a meeting for this purpose shall prepare and publish at the time and in the manner prescribed an electoral roll showing the names of persons qualified to vote.

3. Sub-section (3) lays down: 'When a municipality has been divided into wards, the electoral roll shall be divided into separate lists for each ward.' It is thus plain that the 'electoral roll' refers to the whole municipality and any person whose name is on it is entitled to make a complaint under Section 34. The second ground on which the rule was issued was that the complaint is barred by limitation. This is regulated by Section 34 (b) of the Act, which is in these terms:

Unless such complaint has been made within 14 days of the date of the declaration of the result of any election to which the offence relates or within seven days of the date on which the offence is alleged to have been committed.

4. Here the offences are alleged to have been committed on 3rd and 4th March. The result of the election was declared on the 4th; the complaint was filed on the 15th. In support of the rule Mr. Mukherjee argued that the shorter period of limitation refers to corrupt practices and the longer to other offences. The reason suggested for this was that it is easier to discover corrupt practices and hence a shorter period of limitation is prescribed. In our opinion, it is impossible to say a priori which class of offence is easier to detect. But at any rate in most cases it is impossible to discover a corrupt practice without the connivance of the other party to the corruption. To give this suggested interpretation to the Section would be both forced and meaningless. We agree with Mr. Roy Choudhury, who appears on behalf of the Crown to oppose the rule, that the meaning is perfectly clear. The period of 14 days relates to offences committed in connexion with an election and the shorter period to other offences. For example, the offences enacted in Section 28 have nothing to do with an election and accordingly complaints must be made with, in seven days of the commission of the offences. In the present case the offences in question are alleged to have been committed in connexion with the election and in consequence the complaint was not barred. The rule is accordingly discharged.

Khundkar, J.

5. I agree.


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