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Bibhuti Bhusan Banerjee Vs. Dwarikanath Bhattacharjee - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Reported inAIR1943Cal574
AppellantBibhuti Bhusan Banerjee
RespondentDwarikanath Bhattacharjee
Cases ReferredMahabaleswarappa v. Gopalaswami
Excerpt:
- .....barrackpore, charging the accused with having committed an offence punishable under section 471, penal code. the accused was summoned but discharged on the ground that the complaint was barred by limitation as section 34(b), bengal municipal act, prescribed a period of limitation for the prosecution of an offence of this nature and that period was seven days from the date of the commission of the offence. against this decision, the complainant moved the learned sessions judge. he held that section 34, bengal municipal act, would not apply to a prosecution for an offence punishable under section 471, penal code, but that the prosecution must fail as section 195(1)(c), criminal p.c., barred the court from taking cognizance of this offence, inasmuch as there was no complaint by the.....
Judgment:

Sen, J.

1. The petitioner and the accused c were rival candidates for election as com-missioner of ward 8 of the Bhatpara Municipality. The nomination paper of the accused was rejected by the chairman on the ground that there was no seconder. It was held that the name of the seconder, Jung Bahadur, was forged. Against this decision, there was an appeal to the District Magistrate who is the appellate authority under rules framed under the Bengal Municipal Act. The appeal was dismissed. The petitioner then filed a complaint before the Subdivisional Officer, Barrackpore, charging the accused with having committed an offence punishable under Section 471, Penal Code. The accused was summoned but discharged on the ground that the complaint was barred by limitation as Section 34(b), Bengal Municipal Act, prescribed a period of limitation for the prosecution of an offence of this nature and that period was seven days from the date of the commission of the offence. Against this decision, the complainant moved the learned Sessions Judge. He held that Section 34, Bengal Municipal Act, would not apply to a prosecution for an offence punishable under Section 471, Penal Code, but that the prosecution must fail as Section 195(1)(c), Criminal P.C., barred the Court from taking cognizance of this offence, inasmuch as there was no complaint by the chairman or Magistrate. He was of opinion that, even if the chairman was not a Court, the District Magistrate who heard the appeal was certainly a Court, and that the offence being, one committed in proceedings before that Court, Section 195(1)(c) required a complaint being made by the Court.

2. The complainant has obtained this rule and his contention is this : The act done by the accused constitutes an offence under Section 471, Penal Code, and also an offence under Section 33, Bengal Municipal Act. By virtue of the provisions of Section 26, General Clauses Act, the accused is liable to be prosecuted either under the Penal Code or under the Bengal. Municipal Act. This prosecution is under the Penal Code. The Returning Officer and the District Magistrate are not Courts but officers discharging merely administrative functions, Section 195(1)(C), Criminal P.C., therefore has no application. Mr. Basu for the opposite party contends that if the offence be treated as one punishable under Section 33, Bengal Municipal Act, then the prosecution would be barred under Section 34 of the same Act. The Penal Code could not be called in aid to avoid the bar of limitation. If, however, the act be treated as an offence under the Penal Code, Section 195(1)(c), Criminal P.C., would be a bar, as the chairman and the District Magistrate hearing the appeal were Courts and there was no complaint by either of them.

3. There can be no doubt that the act alleged amounts to an offence punishable under Section 471, Penal Code; the first point for determination is whether it is also made punishable under the Bengal Municipal Act. Learned advocates for both sides argued that it constituted an offence punishable under Section 33, Bengal Municipal Act, and I was inclined at first to agree with this view. On further consideration, however, I am of opinion that ' Section 33, Bengal Municipal Act, does not contemplate the offence alleged to have been committed by the accused. Let us examine the relevant sections of Bengal Municipal Act. Six offences are made punishable under six different sections, viz., Section 28 to 33. The sections deal with different stages. The offence dealt with by each section is described in the heading to each section thus: - Section 28: Offences in respect of the electoral list; Section 29: Corrupt practices; Section 30: fraudulent voting and personation; Section 31: Infringement of secrecy of election; Section 32 : Offences by polling officers; Section 33 : Falsifying result of election. The scheme is clear. Suction 28 deals with offences committed before the election commences when the electoral list is being prepared. Sections 29 to 33 deal with offences committed in the course of the election or after the election has been held but before the result of the election has been published. Section 33 has, in my opinion, nothing to do with the submission of a forged nomination paper before the election commences. The section deals with an act committed in the course of electoral operations and not with an act committed before the electoral operations commence. Offences committed at the stage prior to the election are dealt with by Section 28. Section 33 deals with the falsification or attempted falsification of the 'record of an election' by 'removing, destroying, altering or fabricating nomination papers or voting papers or by any other act or omission.' The gravamen of the offence is stated in the heading : 'Falsifying result of election'. The falsification of a nomination paper, per se is not an offence under the Bengal Municipal Act. The offence is the falsification or attempted falsification of the record of an election. Now, at the time 'that the nomination paper was handed in, in this case, there was no record of an election in existence and it cannot be said that there was either a falsification or attempted falsification of such a record. I hold therefore that the act complained of does not constitute an offence punishable under the Bengal Municipal Act; it constitutes offence punish, able under the Penal Code only. The trial must therefore be held according to the provisions of the Code of Criminal Procedure and nothing contained in Section 34 of Bengal Municipal Act, can apply to such a trial.

4. The question which now arises is whether Section 195(1)(c) bars the trial. This depends on whether the chairman or the Magistrate who heard the appeal from the chairman's decision is a Court within the meaning of Section 195(1)(c) and Section 476 of the Code of Criminal Procedure.

5. There have been numerous cases in which the question of what constitutes a Court within the meaning of Section 195(1)(c) has been discussed. No comprehensive definition of what a Court is has yet been given, nor is it possible to decide such a point in the abstract. It will serve no useful purpose to deal with all these cases as the question will have to be decided with reference to the particular duties and functions of the person or body which is alleged to be a Court and to the procedure adopted for the discharge of these duties and functions. Further the Code in. this respect has undergone amendments since most of these cases were decided. I shall however notice two recent decisions passed after the last amendment of the Code in 1923. In Hari Charan Kundu v. Kaushi Charan Dey : AIR1940Cal286 there has been a review of many of the decisions on the point. Another instructive decision is that given by the High Court of Madras in Mahabaleswarappa v. Gopalaswami ('35) 22 A.I.R. 1935 Mad. 673. In the Calcutta case it was held that a Debt Settlement Board is not a Court within the meaning of Section 195(1)(c). In the Madras case it was held that an election commissioner who tries an election petition is a Court. Let us now examine the various definitions of the word 'Court'. The word Court ha been defined in Section 8, Evidence Act thus:

'Court' includes all Judges and Magistrates and all persons, except arbitrators, legally authorised to take evidence.

6. Now neither the chairman nor the Magistrate under the rules of the Bengal Municipal Act is legally authorised to take evidence. They are therefore not specifically included in Section 3, Evidence Act. A 'Court of justice' is defined Section 20, Penal Code thus:

The words 'Court of justice' denote a Judge who is empowered by law to act judicially alone, or a body of Judges which is empowered by law to act judicially as a body, when such Judge or body of Judges is acting judicially.

7. And a Judge is defined in the same Code thus:

The word 'Judge' denotes not only every person who is officially designated as a Judge, but also every person who is empowered by law to give, in any legal proceeding, civil or criminal, a definitive judgment, or a judgment, which if not appealed against would be definitive, or a judgment which, if confirmed by some other authority, would be definitive, or who is one of a body of persons, which body of persons is empowered by law to give such a judgment.

8. Section 4, Criminal P.C., adopts these definitions of the Penal Code. Neither the chairman nor the Magistrate hearing the appeal from chairman's order are, in my opinion, included within these definitions. They are not Judges within the meaning of Section 19 as the proceedings before them are not 'legal proceedings.' They cannot therefore constitute a Court of justice within the meaning of Section 20, Penal Code. There are cases, however, which have decided that the term 'Court' in Section 195(1)(c) is of voider import than a 'Court of justice' as defined in Section 20, Penal Code. I may accept that view, but however wide that interpretation may be, I cannot see how we can include in it the Chairman or Magistrate acting under the Bengal Municipal Act in a matter like the one under consideration. A Court must act judicially. The proceedings of a Court must be judicial proceedings in which matters are conducted according to the well-known principles of judicial procedure. If a question is to be decided upon evidence there must be rules of how that evidence is to be given and rules regarding what would constitute evidence and what would not. There is no suggestion of any such rules in the Bengal Municipal Act or in the rules made thereunder. The Chairman, when he scrutinises the nomination paper, has merely to satisfy himself that the nomination papers are valid. Rule 17(2) of the rules for the election of Commissioners of municipalities under the Bengal Municipal Act, 1932, lays down the condition which must be complied with in order that a nomination paper may be valid. It is in these terms:

No nomination paper shall be valid if it in not signed by the candidate, or if it does not give the particulars required in cols. 2, 3, 4 and 5 of the said form, or if it is not signed in cols. 6 and 7 respectively, for each ward for which the candidate proposes to stand by at least one voter of each such ward as proposes and voter of each such ward as seconder of the candidate or unless accompanied by a receipt for the deposit of the amount required by Section 23 of the Act.

9. Rule 17(4) says that the Chairman shall scrutinise the nomination papers in the presence of the candidates or their agents if they appear and shall register as candidates all those whose nomination papers are found to be valid. Rule 20 provides that an appeal shall lie against the order of the Chairman to the Magistrate who may make such order as he thinks juat. No procedure is laid down regarding the hearing of the appeal or regarding the scrutinising. Indeed, it seems to me that no rules o procedure were necessary as both these investigations are not judicial investigations at all but administrative acts. The functions of the Chairman and Magistrate in this matter are no more judicial than the functions of an authority granting a driving licence or of a petrol rationing authority. True, the acts performed are not mechanical acts; their performance requires the exercise of discretion and judgment but every act which requires the exercise of discretion and judgment is not necessarily a judicial act nor is every person who does something which requires the exercise of discretion and judgment a Court. For instance, it is well established that an arbitrator is not a Court. A Court pre-supposes a judicial proceeding conducted according to definite rules of procedure. In the present case I am of opinion that the Chairman and Magistrate are not Courts. There is therefore no bar to the proceedings continuing against the opposite party. The order of the learned Sessions Judge is set aside and the rule is made absolute. The learned Magistrate shall take cognizance of the case and proceed according to law.

Edgley, J.

10. I agree.


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