iminal Appeal No 62 of 1954
Appeal by special leave from the Judgment and 0rder dated the 10th June 1953 of the Punjab High Court at Simla in Criminal Revision No 86 of 1953 arising out of the Judgment and Order dated the 7th January 1953 of the Court of Sessions Judge Karnal in Criminal Appeal No 355 of 1952
N C Chatterjee Vir Sen Sawhney and Rajinder Narain with him for the appellant
Gopal Singh and P G Gokhale for the respondent
1014 1955
November 24
The Judgment of the Court was delivered by VENKATARAMA AYYAR J
The appellant was a candidate for election to the House of the People from the Karnal Reserved Constituency during the last General Elections
The proviso to section 333 of the Representation of the People Act XLIII of 1951 omitting what is not material enacts that in a constituency where any seat is reserved for the Scheduled Castes no candidate shall be deemed to be qualified to be chosen to fill that seat unless his nomi nation paper is accompanied by a declaration verified in the prescribed manner that the candidate is a member of the Scheduled Castes for which the seat has been so reserved and the declaration specifies the particular caste of which the candidate is a member and also the area in relation to which such caste is one of the Scheduled Castes
Rule 6 of the Election Rules provides that the declaration referred to in the above proviso shall be verified by the candidate on oath or solemn affirmation before a Magistrate
Schedule If contains the form of nomination paper to be used with the terms in which the declaration is to be made by the candidate and verified by the Magistrate
On 5 11 1951 the appellant signed two nomination papers each containing the following declaration I hereby declare that I am a member of the Balmiki Caste which has been declared to be a Scheduled Caste in the State of Punjab
The Balmiki Caste is one of the castes declared to be a Scheduled Caste under the Constitution Scheduled Castes Order 1950
The above declaration was made on solemn affirmation before the First Class Magistrate Karnal and the nomination paper with the above declaration were filed before the District Magistrate Karnal who was the returning officer
One Jai Ram Sarup a member of the Chamar caste which is one of the Scheduled Castes was also a candidate for the seat and he raised the objection that the appellant was not a Balmiki by caste and that he was therefore not qualified to stand for election to the re served Constituency
Acting on the declaration afore 1015 said the returning officer overruled the objection and accepted the nomination paper of the appellant as valid
At the polling the appellant got the majority of votes and on 6 3 1952 he was declared duly elected
On 27 8 1952 Jai Ram Sarup filed the application out of which the present appeal arises under sections 476 and 195 of the Code of Criminal Procedure before the District Magistrate who functioned as the returning officer
He therein alleged that the declaration made by the appellant that he belonged to the Balmiki caste was false that in fact be was born a Muslim and had been converted to Hinduism and that therefore in the interests of justice and for safeguarding the interests of the Scheduled Castes proceedings should be taken for his prosecution
In his counter affidavit the appellant stated I am not a Muhammadan by birth
On the other hand I was born in Balmiki Hindu family
I am a Hindu
The District Magistrate held an enquiry in which one Prith Singh Azad President of the Depressed Classes Delhi gave evidence that the appellant was a Muslim of the name of Khaliq Sadiq that in 1938 he applied to the Suddhi Sabha to be converted to Hinduism that be was so converted and that thereafter he came to be known as Virindar Kumar
In cross examination he stated that the appellant bad admitted before him that he was a Muslim by birth
He added that he bad two Muslim wives living at the time of the conversion
The applicant Jai Ram Sarup also produced ten letters stated to be in the handwriting of the appellant in proof of the above facts
On 17 9 1952 the Magistrate passed an order that there was a prima facie case for taking action and on 29 9 1952 he filed a complaint before the First Class Magistrate Karnal charging the appellant with offences under sections 181 182 and 193 of the Indian Penal Code
Against this order the appellant preferred an appeal to the Court of the Sessions Judge Karnal who dismissed the same on the ground that the returning officer was not a Court that the proceedings before 1016 him did not fall under section 476 and that there fore no appeal lay under section 476 B
The appellant took the matter in revision before the High Court Punjab and that was heard by Harnam Singh J who held differing from the Sessions Judge that the returning officer was a Court and that his order was therefore appealable
He however held that on the merits there was no case for interference and accordingly dismissed the revision
It is against this order that the present appeal by special leave is directed
On behalf of the appellant Mr N C Chatterjee argues that having held that the order of the returning officer was appealable the learned Judge ought to have remanded the case for hearing by the Sessions Judge on the merits and that his own disposal of the matter was summary and perfunctory
The contention of Mr Gopal Singh for the respondent is that the view of the Sessions Judge that the returning officer was not a court and that his order was not therefore appealable was correct  and that further the order of the High Court in revision declining to inter fere on the merits was not liable to be questioned in special appeal in this Court
The first question that arises for our decision is whether the order of the District Magistrate passed on 17 9 1952 as returning officer is open to appeal
The statutory provisions bearing on this point are sections 195 476 and 476 B of the Code of Criminal Procedure
Section 1951a provides that no court shall take cognizance of any offence punishable under sections 172 to 188 of the Indian Penal Code except on the complaint in writing of the public officer concerned or of his superior
Section 1951b enacts that no Court shall take cognizance of the offences mentioned therein where such offence is committed in or in relation to any proceeding in any Court except on the complaint in writing of such Court or a Court to which it is subordinate
The offence under section 193 is one of those mentioned in section 195 1 b
Section 476 prescribes the procedure to be followed where a Court is moved to lay a complaint and that applies 1017 only to offences mentioned in sections 1951 b and 1951 c and not to those mentioned in section 1951 a
Section 476 B provides for an appeal from an order passed under section 476 to the appropriate Court
The result then is that if the complaint relates to offences mentioned in sections 1951 b and 1951 c an appeal would be competent but not if it relates to offences mentioned in section 1951 a
Now the order of the Magistrate dated 17 9 1952 directs that the appellant should be prosecuted for offences under sections 181 182 and 193
There is no dispute that the order in so far as it relates to offences under sections 181 and 182 is not appealable as they fall directly under section 1951 a
The controversy is only as regards the charge under section 193
Section 193 makes it an offence to give false evidence whether it be in a judicial proceeding or not and it likewise makes it an offence to fabricate false evidence for use in a judicial proceeding or elsewhere
If the offence is not committed in a judicial proceeding then it will fall outside section 1951b which applies only when it is committed in or in relation to a proceeding in Court and there is in consequence no bar to a complaint being made in respect thereof unaffected by the restrictions contained in section 1951 b
But if the offence under section 193 is committed in or in relation to a proceeding in Court then it will fall under section 195 1 b and the order directing prosecution under section 476 will be appealable under section 476 B
The point for decision therefore is whether the returning officer in deciding on the validity of a nomination paper under section 36 of the Act can be held to act as a Court
The question thus raised does not appear to be covered by authority and has to be decided on the true character of the functions of the returning officer and the nature and the extent of his powers
There has been much difference of opinion as to the precise character of the office of a returning officer viz as to whether he is a judicial or ministerial officer says Parker on Election Agent and Returning Officer Fifth Edition page 30
The true 1018 view according to him is that he partakes of both characters and that in determining objections to nomination papers he is a judicial officer
That is also the view taken in Indian decisions
But before we can hold that the proceedings before a returning officer resulting in the acceptance or rejection of a nomination paper fall within section 1951b of the Code of Criminal Procedure it must be shown not merely that they are judicial in character but that further he is acting as a Court in respect thereof
It is a familiar feature of modern legislation to set up bodies and tribunals and entrust to them work of a judicial character but they are not Courts in the accepted sense of that term though they may possess as observed by Lord Sankey LC in Shell Company of Australia vs Federal Commissioner of Taxation1 some of the trappings of a Court
The distinction between Courts and tribunals exercising quasi judicial functions is well established though whether an authority constituted by a particular enactment falls within one category or the other may on the provisions of that enactment be open to argument
There has been considerable discussion in the Courts in England and Australia as to what are the essential characteristics of a Court as distinguished from a tribunal exercising quasi judicial functions
Vide Shell Company of Australia vs Federal Commissioner of Taxation1 R vs London County Council2 Cooper vs Wilson3 Huddart Parker and Co vs Moorehead4 and Rola Co vs The Commonwealth5
In this Court the question was considered in some fulness in Bharat Bank Ltd vs Employees of Bharat Bank Ltd6
It is unnecessary to traverse the same ground once again
It may be stated broadly that what distinguishes a Court from a quasi judicial tribunal is that it is charged with a duty to decide disputes in a judicial manner and declare the rights of parties in a definitive judgment
To decide in a judicial manner involves that the parties are entitled as 1 296
3 5  2 4  6  1019 a matter of right to be heard in support of their claim and to adduce evidence in proof of it
And it also imports an obligation on the part of the authority to decide the matter on a consideration of the evidence adduced and in accordance with law
When a question therefore arises as to whether an authority created by an Act is a Court as distinguished from a quasi judicial tribunal what has to be decided is whether having regard to the provisions of the Act it possesses all the attributes of a Court
We have now to decide whether in view of the principles above stated and the functions and powers entrusted to the returning officer under the Act be is a court
The statutory provision bearing on this matter is section 36
Under section 362 the returning officer has to examine the nomination paper and decide all objections which may be made thereto
This power is undoubtedly judicial in character
But in exercising this power he is authorised to come to a decision after such summary enquiry if any as he thinks necessary
That means that the parties have no right to insist on producing evidence which they may desire to adduce in support of their case
There is no machinery provided for summoning of witnesses or of compelling production of documents in an enquiry under section 36
The returning officer is entitled to act suo motu in the matter
When one compares this procedure with that prescribed for trial of election petitions by the Election Tribunal under sections 90 and 92 of the Act the difference between the two becomes marked
While the proceedings before the Election Tribunal approximate in all essential matters to proceedings in civil courts the proceedings under section 36 present a different picture
There is no lis in which persons with opposing claims are entitled to have their rights adjudicated in a judicial manner but an enquiry such as is usually conducted by an ad hoc tribunal entrusted with a quasi judicial power
In other words the function of the returning officer acting under section 36 is judicial in character but he is not to act judicially in discharging it
We are of opinion that the returning officer deciding on 129 1020 the validity of a nomination paper is not a Court for the purpose of section 195 1 b of the Code of Criminal Procedure and the result is that even as regards the charge under section 193 the order of the Magistrate was not appealable as the offence was not committed in or in relation to any proceeding in a Court
In this view the learned Sessions Judge was right in dismissing the appeal as incompetent and the question argued by Mr N C Chatterjee that the learned Judge of the High Court ought to have remanded the case for hearing by the Sessions Judge on the merits does not arise
It was next argued for the appellant that as the application for initiating prosecution under section 193 was made under section 476 on the assumption that the returning officer was a court the order passed thereon must in the view that he was not a Court be quashed as without jurisdiction
But then it should be noted that the application was presented under section 195 also and it was necessary to move the returning officer under section 1951a with reference to the offences under sections 181 and 182 and there could be no question of quashing the order as without jurisdiction
Even as regards section 193 the position is this It has no doubt been held that section 476 must be taken to be exhaustive of all the powers of a Court as such to Jay a complaint and that a complaint filed by it otherwise than under that section should not be entertained
But there is abundant authority that section 476 does not preclude the officer presiding over a Court from himself preferring a complaint and that the jurisdiction
of the Magistrate before whom the complaint is laid to try it like any other complaint is not taken away by that section
Vide Meher Singh vs Emperor1  Emperor vs Nanak Chand2 Har Prasad vs Emperor3 and Channu Lal vs Rex4
There is thus no legal impediment to a returning officer filing a complaint under sections 181 and 182 as provided in section 195 1 a and charging the accused therein with also an offence 1 AIR 1933 Lah 884
3 AIR 1947 All 139
2 AIR 1943 Lah 208
4 1021 under section 193
In this connection it should be mentioned that the appellant himself took the objection before the Magistrate that qua returning officer he was not a Court and that the proceedings under section 476 were incompetent and that that was overruled on the ground that it was an enabling section
There is therefore no ground for holding that the order dated 17 9 1952 was without jurisdiction
It was finally contended that the Magistrate was under a misapprehension in stating that the appellant had declared that he was born a Balmiki whereas in fact he only declared that he was a Balmiki by caste
But it was the appellant himself who pleaded in his counter affidavit that he was not a Muslim by birth and was born in a Balmiki Hindu family and the observation of the Magistrate has ob vious reference to what was pleaded and argued by the appellant
And it should also be noted that no objection was taken either in the grounds of appeal to the Sessions Court or in revision to the High Court with reference to the above remark
Moreover the charge as laid in the complaint is that the declaration of the appellant in the nomination paper that he was a member of the Balmiki caste was false
There is accordingly no substance in this contention
It must be emphasised that in the view that the order of the Magistrate dated 17 9 1952 was final this appeal being really directed against that order there must be exceptional grounds before we can interfere with it in special appeal and none such has been established
On the other hand whether action should be taken under section 195 is a matter primarily for the Court which hears the application and its discretion is not to be lightly interfered with in appeal even when that is competent
But where as here the legislature does not provide for an appeal it is preposterous on the part of the appellant to invite this Court to interfere in special appeal
This appeal is accordingly dismissed


Summary:
Held that a Returning Officer acting under se 33 and 36 of the Representation of the People Act 1951 and deciding on the validity or otherwise of a nomination paper is not a court within the meaning of sections 1951b 476 and 476 B of the Code of Criminal Procedure
Shell Co of Australia vs Federal Commissioner of Taxation 1931 AC 275 at 296 B vs London County Council 1931 2 KB 215 Cooper vs Wilson 1937 2 KB 309 Huddart Parker and Co vs Moorehead 1908   Rola Co vs The Commonwealth 1944   Bharat Bank Ltd vs Employees of Bharat Bank Ltd 1950 SCR 459 Mehar Singh vs Emperor AIR  Emperor vs Nanak Chand A IR  Har Prasad vs Emperor AIR 1947 All 139 and Channu Lal vs Rex 1950  referred to