judgement:
Appeal No. 910 of 1970.
(From the Judgment and order dated 16 6 1975 of the Orissa High Court in Election Petition No. 1/74).
D.P. Singh, R.P. Singh, Rajiv Dutta, Mrs. Nilma, L.R. Singh and R.K. Jain, for the Appellant.
Santosh Chatterjee, G.S. Chaterjee and D.P. Mukherjee, for the Respondent.
The Judgment of H.R. Khanna and N.L. Untwalia, JJ. was delivered by Khanna, J. V. R. Krishna Iyer, J gave a sepa rate concur ring opinion.
KHANNA, J.
On an election petition filed by Ratnakar Mohanty respondent, the election of Jugal Kishore Patnaik appellant to the Orissa Legislative Assembly from Bhadrak constituency was declared to be void by the Orissa High Court and as such set aside.
The appellant has filed the present appeal against the judgment of the High Court.
Bhadrak assembly constituency is a single member general constituency.
During the general elections to the Orissa Legislative Assembly held in February 1974, the respondent filed four nomination papers for being elected from this constituency.
At the time of scrutiny on January 36, 1974, objection was raised at the instance of Balaram Sahu, one of the contesting candidates, before the Returning Officer that the respondent was disqualified for being chosen as a member of the Assembly as there subsisted contracts between him and the Government of Orissa for execution of certain works.
The respondent, it was accordingly asserted, was disqualified under section 9A of the Representation of the People Act, 1951 (hereinafter referred to as the Act) from seeking election.
Some documents were also produced before the Returning Officer to show that proceedings had been initiated by the Block Development Officer for realisation of certain amounts alleged to be due under those contracts from the respondent.
The Returning Officer upheld the objection and rejected the nomination papers of the re spondent.
Four candidates contested the election, but the main contest was between the appellant, a Congress nominee, who secured 25,522 votes, and Balaram Sahu, art Utkal Congress nominee, who secured 18,723 votes.
The result of the election was declared on February 28, 1974.
Petition to.
challenge the election of the appellant was filed by the respondent on April 12, 1974.
The case of the respondent as set up in the election petition was that his nomination papers had been improperly rejected by the Returning Officer.
According to the re spondent, the works on account 51 of which he had been held to be disqualified by the Return ing Officer had been undertaken by him not in his personal capacity but as the Sarpanch of Rahanj Gram Panchayat under the Bhadrak Panchayat Samiti.
The respondent, therefore, prayed that the election of the appellant be declared to be void.
The petition was resisted by the appellant.
Objections were raised on his behalf that the petition was liable to be dismissed for non compliance with sections 81, 82 and 83 of the Act.
It was also averred that the nomination papers filed by the respondent were not in conformity with sections 33 and 34 of the Act.
On merits, the appellant stated that the respondent was disqualified under section 9A of the Act from seeking election to the Legislative Assembly of Orissa because he had on the date of filing of the nomination papers subsisting contracts with the Government of Orissa in course of his trade and business for execution of work undertaken by the Government.
Following issues were framed by the High Court: ISSUES 1.
Is the election petition liable to be dismissed for noncompliance of sections 81, 82 and 83 of the Representation of the People Act, 1951 ? 2.
Whether the nomination paper filed by the petitioner was in substantial compliance of sec tions 33 and 34 of the Representation of the People Act, 1951 ? 3.
Was the petitioner disqualified under section 9A of the Representation of the People Act, 1951 having subsisting contract with the Govern ment of Orissa in course of his trade and busi ness for execution of work undertaken by the Gov ernment on the date of the filing of the nomination ? 4.
To what relief, if any, the petitioner is entitled to in the facts and circumstances of the case ?" Issues (1) to (3) were decided by the High Court in favour of the respondent and against the appellant.
In the result, the election of the appellant was declared to be void.
In appeal before us Mr. D.P. Singh has at the outset assailed on behalf of the appellant the finding of the High Court on issue No. (1 ).
The challenge to the finding on issue No. (1 ) is, however, confined only to alleged infraction of sub section (3) of section 81 of the Act.
According to that sub section, every election petition shall be accompanied by as many copies thereof as there are re spondents mentioned in the petition, and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition.
Mr. Singh contends that no attested copy of the election petition signed by the petitioner was filed along with the petition.
This conten tion has been: controverted by Mr. Chatterjee on behalf of the respondent, who submits that a copy of the petition attested by the respondent under his own signature was filed along with the petition.
It is further pointed out that the said attested copy of the petition was sent along with the 52 summons to the appellant, but as., he declined to accept the summons, the attested copy along with the summons was af fixed at his residence.
The above stand of the respondent is borne out by the report of the process server.
Mr. Singh has assailed the correctness of the above report of the process server, and has contended that in the index attached to the petition there was no reference to the copy.
As against that, it is submitted on behalf of the respondent that it is not the usual practice in the High Court to refer to the copy of the petition in the index.
There are, in our opinion, some broad facts of the case which lend support to the finding of the High Court on issue No. (1 ) that the election petition was accompanied by an attested copy signed by the respondent.
Endorsement dated April 15, 1974 made by an officer of the High Court shows that a copy of the election petition had been flied.
We find no cogent reason as to why an officer of the High Court should make a false endorsement on the petition if,, in fact, no such copy had been filed.
As regards the factum o.f the, attestation of the copy by the respondent under his own signature we find that the appellant cannot in the very nature of things assert positively that the copy had not been attested by the respondent as, according to.
him, he did not see that copy.
The copy was also not available on the record as the same had been affixed at the residence of the appellant when he, according to the report of the proc ess server, declined to accept the summons.
Before summons were issued to the appellant, the following endorsement was made by an officer of the High Court in respect of the election petition flied by the respondent: "Defect Nil.
" We see no cogent ground to question the correctness of this endorsement which clearly lends support to the inference that the copy filed with the petition had been attested by the respondent and that the petition did not suffer from lack of compliance with the: procedural requirement.
Mr. Singh has next assailed the correctness of the, finding of the High Court on issue No. (2).
It is urged that the respondent obtained signatures of his proposers on blank nomination papers, subsequently filled in the columns and then filed the nomination papers.
It is, in our opinion not necessary to express opinion about three of the nomination papers as we find that one of the, nomination papers in.
any case did not suffer from any such alleged infirmity.
This nomination paper of the respondent was signed by Laksh mikant Mahapotra (PW 3 ) as proposer.
Evidence of this witness dearly shows that he signed, the nomination paper as proposer of the respondent after the various columns in that paper had been filled in.
Nothing has been brought to our notice as to why the statement of the witness in this respect be not accepted.
As at least one of the nomination papers filed by the respondent was in compliance with the.
legal requirement,.
the High Court, in our opinion, correct ly decided issue No. (2).
In view of the above finding, it is not necessary to express opinion on the point as to whether a nomination paper should be hold to be invalid in case the 53 signature of the proposer is obtained before filling in the columns of the nomination paper.
It has been faintly argued that Balaram Sahu, who raised objection to the validity of the nomination papers of the respondent, was not impleaded as a party in the election petition and as such the: petition was liable to be dis missed for non joinder of parties.
This submission too is bereft of force.
According to section 82 of the Act, a petitioner shall join as respondents to his petition where the petitioner, in addition to claiming a declaration that the election of all or any of the returned candidates is void, claims a further declaration that he himself or any other candidates has, been duly elected, all the contesting candidates other than the petitioner, and where no such further declaration is claimed, all the returned candidates.
It is further provided that if allegations of any corrupt practice are made in the petition against any other candi date, he too shall be joined as a respondent.
In the present case, there was no prayer made by the respondent in the election petition that he or any other person should be declared to have been duly elected.
There was also no allegation of corrupt practice against any candidate.
In the circumstances, the requirements of law should be held to be fully satisfied when the respondent impleaded the suc cessful candidate, namely, the appellant, as a respondent in the petition.
Contention has also been advanced on behalf of the appellant that the objections of Balaram Sahu before the Returning Officer about the validity of the nomination papers of the respondent were raised in collusion with the respondent.
The appellant, who has been duly elected,, should not, according to the contention, suffer because of any order made on such collusive objections.
In this respect we find that .there is no factual basis for the assertion that the objections which were raised by Balaram Sahu about the validity of the nomination papers of the respondent were of collusive character.
On the contrary, the appellant in the course of his written statement stated in respect of the objections as under: "At the time of the scrutiny valid and genuine objec tions were filed against the petitioner on the ground that there was subsisting contract between the petitioner and the Government of Orissa and as such he was disqualified to be a candidate." In view of the unequivocal assertion of the appellant in the written statement that the objections were valid and genuine, it would not be permissible for the appellant to take an inconsistent stand in appeal and urge that those objections had been filed in collusion with the. respondent.
Apart from that, we find that according to section 100 (1) (e) of the Act, if the High Court is of the opinion that any nomination has been improperly rejected, it shall declare the election of the returned candidate to be void.
In view of the imperative nature of the provision, it is open to question as to whether the courts cam in the event of an improper rejection of nomination, afford relief to the successful candidate on the score that the objections re sulting in the improper rejection of the nomination, were collusive.
Whether the legislature would do something in the matter is essentially for the legislature to 54 decide.
We need not, however, dilate upon this aspect of this case in the face of our finding that the appellant has clearly admitted in the written statement that the objec tions which were filed about the validity of the nomination papers of the respondent were not collusive but were genu ine.
Lastly, Mr. Singh has assailed the finding of the High Court on issue No. (3).
Although during the course of the trial of the election petition the appellant relied upon 15 items to show that the respondent had entered into works contracts with the State Government, in this Court Mr. Singh has ,confined his argument to only two items, namely, item No. (1) and item No. (8).
Item No. (1) relates to an ad vance of Rs. 100 for repair of Erein School.
The case of the respondent is that the above amount was received by him as Sarpanch of Gram Panchayat Rahanj and that the said work had to be executed by that Gram Panchayat and not by the respondent personally.
The High Court accepted the stand of the respondent, and we find no cogent ground to take a different view.
exhibit 43 is letter dated December 3, 1968 signed by the Sub Divisional Officer Bhadrak to the Certifi cate Officer for recovery of Rs. 7,017/ .
This letter shows that the aggregate sum of Rs. 7,017, of which Rs. 100 was a part, constituted the fund of the Gram Panchayat.
Order dated May 25, 1965 of the Block Development Officer also shows that the work on account of which Rs. 100 were paid had to be executed through the agency of Rahani Gram Pan chayat.
To similar effect is the statement of PW 9 Khages war Roy.
Block Development Officer.
The evidence of this witness shows that the amount in question was given to the Gram Panchayat for repair work.
The above material, in our opinion,, clearly shows that the contract for the execution of the repair work, which is the subject matter of item No. (1 ), was not entered into with the respondent in his per sonal capacity and that the said work had to be.
executed by the Gram Panchayat.
So far as item No. (8) is concerned, the same relates to work of wooden culvert No. 9 on Jamujhari Khirkona road.
exhibit 55 is the written agreement relating to this contract.
Perusal of the agreement makes it clear that the tender in respect of this work was accepted on behalf of the Modern Labour Co operative Contract Society, of which the respond ent was the PreSident.
The document thus shows that it was not the respondent but the society which entered into con trac to the execution of the above work, and the respondent signed the document in his capacity as the President of that Society.
Apart from the above, we agree with the High Court that the above contract was not subsisting on the date of the filing of the nomination paper.
The agreement for the execution of the above work was dated May 8, 1964.
On November 24., 1966 an order was made by the Block Develop ment Officer that the construction work of the culvert had been completed since long and final measurements too had already been made.
The total work was found to be worth Rs. 4,253.70.
It was further observed in the order that Rs. 722 should be paid on account of the above work after deduct ing the previous advances and cost of the material.
The contractor was directed to return the material used in the tubewell.
The above order of the Block Development 55 Officer shows that the cost of the material and the amounts advanced to tile respondent were deducted before direction was given for payment of Rs. 722 to the contractor.
Mr. Singh has laid particular stress upon the direction in the order of the Block Development Officer that the contractor should return the material used in the tubewell.
In respect of the material used in the tubewell, it appears to us that the said material was also returned by the contractor the same day the order was made.
According to the testimony of RW 11 J.K. Satpathy Block Development Officer, if the mate rial required to be returned as per that last order was not returned, the final bill amount in respect of that work could not have been paid.
Rs. 722 were, however, admittedly paid on November 24, 1966.
The factum of that payment clearly points to the conclusion that the contractor re turned the material used in the tubewell before the payment of Rs. 722 was made to him.
There is also nothing to show that any demand was made ' to the contractor subsequent to 1966 for return of the material used in the tubewell.
The absence of any such demand, even though a long period has elapsed since 1966, clearly goes to show that no, material used in the, tubewell remained with the contractor.
It cannot, therefore be said that the said contract was sub sisting on the date the respondent filed his nomination paper.
We consequently uphold the finding of the High Court on items (1) and (8) under issue No. (3).
As a result of the above, we dismiss the appeal, but in the circumstances without costs.
KRISHNA IYER, J., Whole hearted is my agreement with the judgment of my learned brother Khanna J., both in the con clusions and in the reasonings.
This does not obviate an extra opinion on certain deeper, though peripheral, as pects of the law thrown up.
by the facts, disturbing in their implications and laying bare certain gaping gaps in the election law.
In a democracy,, the electoral process has a strategic role and in India it has constitutional status although canalysed by the Representation of the People Act, 1951 (hereinafter called the Act).
Lord Holt long ago observed:(1) "A right that a man has to give his vote at an election of a person to represent him in Parlia ment, there to concur to.
the making of laws, which are to bind his liberty and property, is a most transcendent thing, and of an high nature, and the law takes notice of it as such in divers statutes .
The right of voting at the elec tion of burgesses is a thing of highest impor tance, and so great a privilege, that it is a great injury to deprive the plaintiff of it . " And, if I may add,, this widespread right belongs to every common citizen.
In such circumstances, nO one can gainsay the need for the provisions regulating disqualifications affecting the adult franchise to run for elective office to be fool proof to that degree that the little man of India may confidently participate in the political process without being exposed to booby traps of the law.
Quoted in University of Pensylvania Law Review 1968 p. 24 (Vol. 117).
56 In this case an election was honestly fought and won by the appellant but the verdict has been reduced to a Dead Sea fruit by a surprise blow of the law because the respondent 's nomination, on the captious objection of the defeated candi date (the appellant being innocent, at that stage, of rais ing any obstructive tactic), was illegally rejected The facts, already set out by my learned brother, disclose that the wrong rejection by the Returning Officer was on the score that he had subsisting contracts with the State Government.
This ground was plausibly urge.d before the Returning Officer by a candidate who polled poorly.
The Officer was taken in by the specious plea and rejected the respondent 's nomination.
Its aftermath, long after the election was fought and won, is that people 's verdict has been stultified and its victim is the then innocent appel lant.
Had there been any procedure for double quick deter mination of objections to nominations with early appellate finality attached to it, the lurking danger of the whole process being ultimately baulked on account of antecedent official error would not have arisen a consummation devout ly to be wished.
Nor does it require great imagination to make provision in this behalf, but its omission has led to the martyrdom of the appellant and the orphanage of the electorate.
Yet another legislative insufficiency surrounding section 9A of the Act needs to be highlighted.
This provision, as has been explained earlier by my learned brother, disqualifies a person from being a candidate if there subsists a contract entered into by him in the course of his trade or business with the appropriate government for the supply of goods to, or for the execution of any works undertaken by, that gov ernment.
It is followed by an Explanation which is more or less a legal fiction.
The rugged edges of ambiguity of section 9A especially as to how long and in what sense can a contract be said to be subsisting envelop the disbarment provision with subtle legal questions.
The common man of India is the .potential candidate and is he to risk his candidature en the niceties of the law of contracts ? In this context we must remember that the vast and various developmental works undertaken by the State and its subsidiaries and executed by a large number of little construction contractors made it very desirable that the disqualificatory net should not be cast too wide to disfranchise innumerable persons and must be easy of ascertainment if uncertainty is not to overhang elections in our political system.
In this very case sever al problems were mooted, somewhat difficult to answer.
How long does a contract subsist ? Is every liability arising on a breach of contract, a claim under the contract attracting the lethal coils of section 9A ? If government money is involved in the execution of the work.
does the contract necessarily become one with government ? A host of other questions may mystify the legal imports of the taboo section 9A sets out and yet every lay man is imperilled by this vague provision in the exercise of his electoral right.
Such a brooding fear and haunting provisions is counter productive and may per haps have to be redrafted in the light of experience in court.
These are problems not of high sounding law but affecting the common man in the exercise of his most demo cratic right.
Nietzche once said: ,The great problems are in the streets.
The inaugural error in the drawing up of our election law, as is illustrated by this 57 case, is that sophisticated provisions amenable to logico linguistic feats or subtle interpretation of civil law ill suit a regulatory area of the political process where the small individual offers himself for electoral contest.
I choose to make these observations and draw the attention of the concerned instrumentalities only because in my humble view the court has an activist role to tell the nation, through its judgment or other designated channels where the law misfires, or how the law stands in need of reform.
This case therefore induces me to make what may be regarded as obiter: "The little case, the ordinary case, is a constant occasion and vehicle for creative choice and creative activity, for the shaping and on going reshaping of our law.
"(1) More than a hundred years ago Lord Chancellor Westbury made certain seminal observations(2): "The first thing, then, that strikes every member of our profession who directs his mind beyond the daily practical necessity of the cases which come before him is, that We have no machinery for noting, arranging, generalising and deducing conclusions from the observations which every scientific mind could naturally make on the way in which the law is worked in the country .
Take any particular department of the common law take, if you please, any particular stat ute.
Why is there not a body of men in this country whose duty it is to collect a body of judicial statistics, or, in the more common phrase, make the necessary experiments to see how far the law is fitted to the exigencies of society, the necessi ties of the times, the growth of wealth, and the progress of mankind ? . " Way back in 1921,, Benjamin N. Cardozo, then a Judge of New York 's highest court, said :(3) "The Courts are not helped as they could and ought to be in the adaptation of law to justice.
The reason they are not helped is because there is no one whose business it is to give warning that help is needed . .
We must have a courier who will carry the tidings of distress .
To day courts and legislature work in separation and aloofness.
The penalty is paid both in the wasted effort of production and in the lowered quality of the product.
On the one side, the judges, left to fight against anachronism and injustice by the methods of judge made law, are distracted by the conflicting promptings of justice and logic, of consistency and mercy, and the output of their labors bears the token of the strain.
On the other side, the legislature, informed only casually and intermittently of the needs and problems of the courts, without expert or responsible or disinter ested or systematic advice (1) Quoted in (1961 62) Vol.
71 Yale Law Jownal p. 259.
(2) Quoted in Vol.
128, Mod.
L.R.p. 1.
(3) Address to the Association of the Bar of the City of New York quoted in (3) supra.
6 1003 SCI/76 58 as to the workings of one rule or another, patches the fabric here and there, and mars often when it would mend.
Legislature and courts move on in proud and silent isolation.
Some agency must be found to.
mediate between them.
" May be, as has been done in the State of New York, the establishment of a Law Revision Commission charged with comprehensive law reform duties with direct link with the law court may go a long way to meet the felt need.

summary:
On the ground that there were subsisting contracts between him and the State Government for execution of cer tain works, the nomination papers of the respondent for the general election to the State Assembly were rejected by the Returning Officer under section 9A of the Representation of the People Act, 1951 at the instance of one of the contesting candidates.
In the election that ensued the appellant was declared elected.
The respondent in his election petition contended that the works on account of which he had been disqualified had been undertaken by him, not in his personal capacity, but as the Sarpanch of the Gram Panchayat.
The High Court held that the respondent was not disqualified under section 9A of the Act and declared the election void.
On appeal, it was contended that the objections regard ing the validity of the nomination papers of the respondent were raised in collusion with the respondent and a duly elected candidate should not be made to suffer because of an order made on such collusive objections.
Dismissing the appeal, HELD: (1 )(a) The appellant has clearly admitted in his written statement that objections which were filed about the validity of the respondent 's nomination papers were not collusive but genuine.
[53 G] (b) According to Sec.
100(1)(c) of the Act, if the High Court is of the opinion that any nomination had been improp erly rejected, it shall declare the election of the returned candidate to be void.
In view of the imperative nature of the provision, it is open to question as to whether courts can, in the event of an improper rejection of nomination, afford relief to the successful candidate on the score that the objections resulting in the improper rejection of nomi nation, were collusive.
Whether the legislature would do something in the matter is essentially for the legislature to decide, [53 G H] (2) A perusal of one of the disputed items shows that the tender in respect of the work was accepted on behalf of a Cooperative Society of which the respondent was the Presi dent.
It was not the respondent but the Society which entered into contract for the execution of the work and he signed the documents in his capacity as President of the.
Society.
The contract was not subsisting on the date of filing of the nomination paper.
In respect of another item the contract was not entered into with the. respondent in his personal capacity but the work had to be executed by the Gram Panchayat.
[54F G] Krishna Iyer J. (concurring) (1) In the instant case the Returning Officer was taken in by the specious plea that the respondent had` subsisting contracts with the State Government an& rejected his nomination papers.
Its aftermath was that the.
people 's verdict had been stultified.
Had there been any procedure for quick determination of objections to nominations with early appellate finality attached to it, the lurking danger of the whole process being ultimately baulked on account of antecedent official error would not have arisen.
[56 C] (2) The ambiguity in section 9A, especially as to how long and in what sense can a contract be said to be subsisting envelopes the disbarment provision with subtle legal ques tions such as: how long does a contract subsist ? Is every 50 liability arising on a breach of contract a claim under the contract the Provisions of s .
A9 ? If Government money is involved in the execution of the work does the contract necessarily become one with Government ? It is very de sirable that the disqualificatory net should not be cast too wide to disfranchise innumerable persons and must be easy of ascertainment if must be uncertainty is not to overhang elections [56 EH]


judgement:
Appeal No. 95 of 1953.
On appeal from the Judgment and decree dated the 29th day of June 1951 of the Bombay High Court in Appeal No. 93 of 1949 arising out of the order dated the 16th September 1949 of the Court of Bombay City Civil Court at Bombay in Award No. 45 of 1949.
M.C. Setalvad, Attorney General of India (H. J. Umrigar, Sri Narain Andley, Rameshwar Nath and Rajinder Narain, with him), for the appellant.
H.R. Mehervaid and R. N. Sachthey, for the respondent.
October 4.
The Judgment of the Court was delivered by VENKATARAMA AYYAR J.
The appellant is a share broker carrying on business in the City of Bombay, and a member of the Native Share and Stock Brokers ' Association, Bombay.
The respondent, Mrs. Goolbai Hormusji, employed him for effecting sales and purchases of shares on her behalf, and on 6 8 1947 there was due from her to the appellant on account of these dealings a sum of Rs. 6,321 12 0.
On that date, the respondent had outstanding for the next clearance, sales of 25 shares of Tata Deferred and 350 shares of Swadeshi Mills.
On 11 8 1947, the appellant effected purchases of 25 shares of Tata Deferred and 350 shares of Swadeshi Mills to square the outstanding sales of the respondent, and sent the relative contract notes therefor Nos. 2438 and 2439 (Exhibit A) to her.
She sent a reply repudiating the contracts on the ground that the appellant had not been authorised to close the transactions on 11 8 1947, and instructed him to square them on 14 8 1947.
The appellant, however, declined to do so, maintaining that the transactions had been closed on 11 8 1947 under the 109 860 instructions of the respondent.
After some correspondence which it is needless to refer to, the appellant applied on 21 8 1947 to the Native Share, and Stock Brokers Association, Bombay for arbitration in pursuance of a clause in the contract notes, which runs as follows: "In event of any dispute arising between you and me/us of this transaction the matter shall be referred to arbitration as provided by the Rules and Regulations of the Native Share and Stock Brokers ' Association".
The Association gave notice of arbitration to the respondent, and called upon her to nominate her arbitrator, to which she replied that the contract notes were void, and that in consequence, no arbitration proceedings could be taken thereunder.
The arbitrators, however, fixed a day for the hearing of the dispute, and gave notice thereof to her, but she declined to take any part in the proceedings.
On 10 10 1947 they made an award in which, on the basis of the purchases made by the appellant on 11 8 1947 which were accepted by them, they gave credit to the respondent for Rs. 1,847, and directed her to pay him the balance of Rs. 4,474 12 0.
The respondent then filed the application out of which the present appeal arises, for setting aside the award on the ground, inter alia, that the contracts in question were forward contracts which were void under section 6 of the Bombay Securities Contracts Control Act VIII of 1925, that consequently the arbitration clause was also void and inoperative, and that the proceedings before the arbitrators were accordingly without jurisdiction and the award a nullity.
Section 6 of the Act is as follows: "Every contract for the purchase or sale of securities, other than a ready delivery contract, entered into after a date to be notified in this behalf by the Provincial Government shall be void, unless the same is made subject to and in accordance with the rules duly sanctioned under section 5 and every such contract shall be void unless the same is made between members or through a member of a recognised stock 861 exchange; and no claim shall be allowed in any Civil Court for the recovery of any commission, brokerage, fee or reward in respect of any such contract".
Section 3(1) defines 'securities ' as including shares, and therefore, contracts for the sale or purchase of shares would be void under, section 6, unless they were made in accordance with the rules sanctioned by the Provincial Government under section 5.
The appellant sought to avoid the application of section 6 on the ground that the contracts in question were 'ready delivery contracts ', and fell outside the operation of that section.
Section 3(4) of Act VIII of 1925 defines 'ready delivery contract ' as meaning "a contract for the purchase or sale of securities for performance of which no time is specified and which is to be performed immediately or within a reasonable time", and there is an Explanation that "the question what is a reasonable time is in each particular case a question of fact".
The contention of the appellant was that contracts Nos.
2438 and 2439 were ready delivery contracts as defined in section 3(4), as no time was specified therein for performance.
The learned City Civil Judge, who heard the application agreed with this contention, and holding that the contracts were not void under section 6 of Act VIII of 1925, dismissed the application.
The respondent took the matter in appeal to the High Court of Bombay, and that was beard by Chagla, C.J. and Tendolkar, J. They were of the opinion that the con ' tracts in question were not ready delivery contracts as defined in section 3(4) of the Act, because though no time for performance was specified therein, they had to be performed within the period specified in the Rules and Regulations of the Association, which were incorporated therein by reference, and not "immediately or within a reasonable time" as provided in section 3(4), that they were accordingly void under section 6, and that consequently, the arbitration clause and the proceedings taken thereunder culminating in the award were also void.
They accordingly set aside the award as invalid and without jurisdiction.
Against this judgment, the appellant has preferred this appeal 862 on a certificate under article 133(1) (c).
It was argued by the learned Attorney General in support of the appeal that even apart from the question whether the contracts in question were for ready delivery or not, they would be outside the purview of section 6, because they were not contracts for sale and purchase of securities.
This contention was not raised in the courts below, and learned counsel for the respondent objects to its being entertained for the first time in this Court, as that would involve investigation of facts, which has not been made.
But in view of the terms of the contract notes and the admission of the respondent in her petition, we are of opinion that the point is open to the appellant, and having heard counsel on both sides, we think that the appeal should succeed on that point.
The dispute between the parties is as to whether the appellant was acting within the scope of his authority when he purchased 25 shares of Tata Deferred and 350 shares of Swadeshi Mills on 11 8 1947.
If he was acting within his authority, then the respondent was entitled only to a credit of Rs. 1,847 on the basis of the said purchases. ' But if these purchases were unauthorised, the appellant was liable to the respondent in damages.
In either case, the dispute was one which arose out of the contract of employment of the Appellant by the respondent as broker and not out of any contract of sale or purchase of securities.
The question of sale or purchase would arise between the respondent and the seller or purchaser, as the case may be, with reference to the contract brought about by the appellant.
But the relationship between the respondent and the appellant was one of principal and agent and not that of seller and purchaser.
The contract of employment is no doubt connected, and intimately, with sales and purchases of securities; but it is not itself a contract of sale or purchase.
It is collateral to it, and does not become ipso facto void, even if the contract of purchase and sale with which it is connected is void.
Vide the decision of this Court in Kishan Lal and another vs Bhanwar Lal(1) The legis (1) (1955] 1 S.C.R. 439.
863 lature might, of course, enact that not merely the contract of sale or purchase but even contracts collateral thereto shall be void, in which case the contracts of employment with reference to those contracts would also be void.
But that is not what Act VIII of 1925 has done.
Section 6 expressly provides that no claim shall be maintained in a civil court for the recovery of any commission, brokerage, fee or reward in respect of any contract for the purchase or sale of securities.
That is to say, the bar is to the broker claiming remuneration in any form for having brought about the contract.
But the contract of employment is not itself declared void, and a claim for indemnity will not be within the prohibition.
The question whether contract notes sent by brokers to their constituents are contracts for the sale and purchase of securities within section 6 of Act VIII of 1925, came up for consideration before the Bombay High Court in Promatha Nath vs Batliwalla & Karani (1) and it was held therein that they were not themselves contracts for sale or purchase but only intimations by the broker to the constituent that such contracts had been entered into on his behalf.
We agree with this decision.
It may be argued that if the contract note is only intimation of a sale or purchase on behalf of the con stituent, then it is not a contract of employment, and that in consequence, there is no agreement in writing for arbitration as required by the Arbitration Act.
But it is settled law that to constitute an arbitration agreement in writing it is not necessary that it should be signed by the parties, and that it is sufficient if the terms are reduced to writing and the agreement of the parties thereto is established.
Though the respondent alleged in her petition that she had not accepted the contract notes, Exhibit A, she raised no contention based thereon either before the City Civil Judge or before the High Court, and even in this Court the position taken up by her counsel was that Exhibit A constituted the sole repository of the contracts, and as they were void, there was no arbi (1) I.L.R. [1942] Bom. 655; A.I.R. 1942 Bom.
864 tration clause in force between the parties.
We accordingly hold that the contract notes contained an agreement in writing to refer disputes arising out of the employment of the appellant as broker to arbitration, and that they fell outside the scope of section 6 of Act VIII of 1925, that the arbitration proceedings are accordingly competent, and that the award made therein is not open to objection on the ground that Exhibit A is void.
It was next contended for the respondent that the contract notes were void under Rule 167 of the Native Share and Stock Brokers ' Association, and that on that ground also, the arbitration proceedings and the award were void.
Rule 167 so far as it is material is as follows: "167.
(a) Members shall render contract notes to non Members in respect of every bargain made for such non Member 's account, stating the price at which the bargain has been made.
Such contract notes shall contain a charge for brokerage at rates not less than the scale prescribed in Appendix G annexed to these Rules, or as modified by the provisions of rules 168 and 170(b).
Such contract notes shall show brokerage separately and shall be in Form A prescribed in Appendix annexed to these Rules.
. . . . . . . . (c) No contract note not in one of the printed Forms in Appendix H shall be deemed to be valid.
. . . . . . . . (g) A contract note referred to in this rule or any other rule for the time being in force shall be deemed to mean and include a contract and shall have the same significance as a contract".
Form A in Appendix H referred to in Rule 167(a) contains two columns, one showing the rate at which the securities are purchased or sold and the other, the brokerage.
The contract notes sent to the respondent are not in this form.
They are in accordance with Form A in Appendix A, and show the rates at which the securities are sold or purchased, the brokerage not being separately shown.
At the foot of the document, there is the following note; 865 "This is net contract.
Brokerage is included in the price".
The contention of the respondent is that the contract notes are not in accordance with Form A in Appendix H, as the price and brokerage are not separately shown, and that therefore they are void under Rule 167(c).
Now, Rule 167 applies only to forward contracts, and the basis of the contention of the respondent is that inasmuch as the contract notes, Exhibit A, have been held by the learned Judges of the High Court not to be ready delivery contracts but forward contracts, they would be void under Rule 167(c), even if they were not hit by section 6 of Act VIII of 1925.
The assumption underlying this argument is that what is not a ready delivery contract under the definition in section 3(4) of Act VIII of 1925 must necessarily be a forward contract for purposes of Rule 167.
But that is not correct.
The definition of a ready delivery contract in section 3(4) is only for the purpose of the Act, and will apply only when the question is whether the contract is void under section 6 of that Act.
But when the question is whether the contract is void under Rule 167, what has to be seen is whether it is a forward contract as defined or contemplated by the Rules.
The definition in section 3(4) of Act VIII of 1925 would be wholly irrelevant for determining whether the contract is a forward contract for purposes of Rule 167, the decision of which question must depend entirely on the construction of the Rules.
The relevant Rules are Nos. 359 to 363.
Rule 359 provides that "contracts other than ready delivery contracts shall not be made or transacted within or without the ring".
Rule 361 confers on the Board power to specify which securities shall be settled by the system of Clearance Sheets and which, by the process of Tickets.
Rules 362 and 363 prescribe the modus operandi to be followed in effecting the settlement.
It was with reference to these rules which under the contract notes were to be read as part of the con tract, that the learned Judges held that the contracts were not ready delivery contracts as defined in sec 866 tion 3(4) of Act VIII of 1925.
But reading the above Rules with Rule 359, there can be no doubt that the contract notes, Exhibit A, would for the purpose of the Rules be ready delivery contracts.
Indeed, the form of the contract notes, Exhibit A, is the one provided under the Rules for ready delivery contracts, whereas Form A in Appendix H is, as already stated, for forward contracts.
Thus, contracts which are regulated by Rules 359 to 363 cannot be forward contracts contemplated by Rule 167, and they cannot be held to be void under that Rule.
The error in the argument of the respondent is in mixing up two different provisions enacted by two different authorities and reading the one into the other.
The rules framed by the Association form a code complete in itself, and any question arising with reference to those rules must be determined on their construction, and it would be a mistake to read into them the statutory provisions enacted in Act VIII of 1925.
In this view, the contract notes, Exhibit A, cannot be held to be void under rule 167.
In the result, we must hold, differing from the learned Judges of the court below, that the arbitration proceedings are not incompetent and that the award made therein is not void on the ground that the contracts containing the agreement are void.
The respondent contested the validity of the award on several other grounds.
They were rejected by the City Civil Judge and in the view taken by the learned Judges of the High Court that the contract notes were void under section 6 of Act VIII of 1925, they did not deal with them.
Now that we have held that the contracts are not void, it is necessary that the appeal should be heard on those points.
We accordingly set aside the order of the court below, and direct that the appeal be reheard in the light of the observations contained herein.
As the appeal succeeds on a point not taken in the courts below, the parties will bear their own costs throughout.
The costs of the further hearing after remand will be dealt with by the High Court.

dataset_name: IN-Abs

summary:
The appellants share broker carrying on business in the City of Bombay and a member of the Native Share and Stock Brokers ' 858 Association was employed by the respondent for effecting sales and purchases of shares on her behalf.
The appellant effected purchases of 25 shares of Tata Deferred and 350 shares of Swadeshi Mills to square the outstanding sales of the same number of shares standing in her name and sent the relative contract notes therefor to her.
She repudiated the contracts on the ground that the appellant had not been authorised to close the transactions on the date mentioned by him and asked him to square them at a later date.
The appellant maintained that the transactions had been closed in accordance with her instructions.
The appellant referred the dispute for arbitration to the Native Share and Stock Brokers ' Association in pursuance of an arbitration clause in the contract notes.
The respondent refused to submit to arbitration of the association on the ground that the contract notes were void and therefore no arbitration proceedings could be taken thereunder.
The arbitrators made an award in favour of the appellant in the absence of the respondent who declined to take part in the proceedings.
The respondent filed an application for setting aside the award.
The Bombay High Court held that the contracts in question were not ready delivery contracts as defined in section 3(4) of the Bombay Securities Contracts Control Act VIII of 1925 and that they were accordingly void under section 6 of the Act and therefore the arbitration clause and the proceeding taken thereunder culminating in the award were also void.
Held that apart from the question whether the contracts in question were for ready delivery or not, they were outside the purview of section 6 of Bombay Act VIII of 1925 because they were not contracts for sale and purchase of securities.
The dispute between the parties was as to whether the appellant was acting within the scope of his authority when he purchased the shares.
If he was acting within his authority, the respondent was liable to him.
If those purchases were unauthorised, the appellant was liable to the respondent for damages.
In either case the dispute was one which arose out of the contract of employment of the appellant by the respondent as a broker and not out of any contract of sale or purchase of securities.
The relationship between the respondent and the appellant was that of principal and agent, and not that of seller and purchaser.
The contract notes sent by brokers to their constituents are not themselves contracts for sale or purchase of securities within section 6 of the Bombay Act VIII of 1925 but only intimations by the broker to the constituent that such contracts had been entered into on his behalf.
It is settled law that to constitute an arbitration agreement in writing it is not necessary that it should be signed by the parties, and that it is sufficient if the terms are reduced to writing and the agreement of the parties thereto is established.
The Rules framed by the Native Share and Stock Brokers ' Association, Bombay form a code complete in itself and any question 859 arising with reference to those Rules must be determined on their construction and it would be a mistake to read into them the statutory provisions enacted in the Bombay Act VIII of 1925 and therefore the contract notes cannot be held to be void under Rule 167.


judgement:
IVIL Appeal No. 1863 of 1968.
P. Ram Reddy, K. Jayaram and A. V. V. Nair, for the appel lant.
T.C. Raghavan, B. Parthasarathi and section Shaukat Hussain, for the respondent.
The Judgment of the Court was delivered by RAY, C.J.
This appeal by special leave is against the judgment dated 3 April, 1967 of the High Court of Andhra Pradesh.
The respondent filed this suit to set aside the order of compulsory retirement on the ground that it was illegal, wrongful, ultra vires and inoperative.
The respondent al leged that the departmental enquiry was initiated by the Chief Justice and not by the Administrative Bench of the High Court which alone could do so under the Hyderabad High Court Act.
The respondent alleged that he was not given a reasonable opportunity inasmuch as the report of the Enquiry Officer was submitted 129 to the Chief Justice and not to the Administrative Bench and that the Public Service Commission was not consulted.
The respondent further alleged that the Chief Justice added his own findings to the report of the Enquiry Officer while sending it to the Government and in doing so he took extra neous matters which had not been the subject matter of the enquiry.
The respondent alleged that he had no opportunity to defend himself with reference to the findings of the Chief Justice.
The High Court held that the report of the High Court took into consideration extraneous matters and thus deprived the respondent from giving a reasonable opportunity.
The High Court, therefore, held that Article 311(2) was violat ed.
The High Court confirmed the decree of the trial Court but modified the order to the extent that the respondent was entitled to arrears of salary.
The Hyderabad Civil Services (Classification, Control and Appeal) Rules referred to as the Rules contain in Part III the following relevant provisions.
Rule 9(b) states that compulsory retirement before completion of 30 years or 25 years of qualifying service is one of the penalties.
Rule 12 provides that the Government may impose any of the penalties mentioned in items (ii) to (viii) of Rule 9 on members of the State Services after consultation with the Public Service Commission where such consultation is neces sary.
Rule 17(b) provides that in every case where it is proposed to impose on a member of a Service any of the penalties mentioned in items (iv), (vi), (vii) and (viii) of rule 9.
the grounds shall be communicated.
The.charges are to be communicated together with the statement of the alle gations on which each charge is based.
A written statement is required to be filed by the officer and an enquiry shall be held.
After the enquiry has been completed, the person charged shall be entitled to put in, if he so desires.
any further written statement in his defence.
After the enquiry has been completed and after the authority competent to impose the penalty mentioned in that clause has arrived at provisional conclusions, the person charged shall be sup plied with the copy of the report of the enquiring authority and be called upon to show cause within a reasonable time against the particular penalty proposed to be inflicted.
Rule 14 states that after completing the oral enquiry, if any, and giving the person charged an opportunity of making a written statement, the inquiry officer should record his, findings on each charge, the reason for such findings and recommendations as regards the penalty on each of the charges.
Rule 16 states that on receipt of the report of the enquiry officer the punishing authority should arrive at a provisional conclusion in regard to the penalty to be imposed and the person charged shall be supplied with a copy of the report of the enquiry officer and be called upon to show cause within a reasonable time why the particular penalty or penalties should not be inflicted upon him.
Any representation submitted by the person charged in this behalf shall be duly taken into consideration by the punish ing authority before final orders are passed.
The Rules further provide that in a case in which it is necessary to consult the Public Service Commission according to the provisions of 130 the Public Service Commission Regulations, the complete papers of the case should be sent to the Commission for their advice as regards the action to be taken without any observation on the merits of the case.
On receipt of the advice of the Commission, if it be found that the Commission have agreed with the provisional conclusion reached by the punishing authority as regards the penalty to be inflicted, final orders should be issued to the person Charged.
If, however, it be found that there has been disagreement on this point and the punishing authority has no objection to accept the advice of the Commission, final orders should be issued to the person charged.
If, however, the punishing authority does not consider it feasible to accept the advice of the Commission another reference on this point should be made to the Commission and if they still adhere to their views the case should be submitted through the Services Branch of the General Administrative Department for the orders of the Chief Minister showing reason for the proposal and such orders as may be passed by the Chief Minister shall be communicated to the person charged.
Uuder the Hyderabad High Court Act 3 of 1337 fasli corresponding to the year 1937 section 12 provides for the Administrative Bench consisting of at least two Judges appointed by the Chief Justice.
The Chief Justice may constitute more than one Administrative Bench.
Every ques tion before the Administrative Bench shall be decided either by a consensus or by majority of opinion.
But where a disagreement does not produce a majority of opinion, action shall be taken in accordance with the view with which the Chief Justice might concur.
If the Chief Justice does not join the Bench and there is no majority of opinion all opinions shall be placed before the Chief Justice and the opinion concurred by him shall be given effect to.
Section 13 of the Hyderabad High Court Act deals with powers of Administrative Bench of the High CoUrt.
The Administra tive Bench shall have power inter alia to sanction, suspen sion, fines, dismissal.
The respondent was appointed as Munsiff Magistrate in the year 1948.
Sometime in 1951 and 1952 a preliminary enquiry by the District and Sessions Judge was made.
The Administrative Bench consisting of the Chief Justice of the High Court and another learned Judge deputed Justice Manohar Prasad to conduct the enquiry in accordance with the Rules.
On 16 April, 1953 the respondent was suspended.
A charge sheet was served on the respondent along with the statements of four persons.
On the following charges it was proposed to remove the respondent from service namely (1) Communal bias in deciding case, (2) disregarding judicial orders, (3) suggesting names of Muslim lawyers to Muslim parties and (4) inefficiency.
On 3 August, 1953 the Enquiry Officer Justice Manohar Prasad submitted a report finding the respondent guilty of charges numbered 1 and 3 and he recommended a warning.
On 25 August, 1953 the report of the Chief Justice on his own examination of the evidence confirmed the findings of the enquiry officer and he recommended compulsory retirement.
On 5 September, 1953 the Administrative Bench the High Court sent both the reports to the Government.
131 On 14 October, 1953 a show cause notice was issued from the Government for compulsory retirement of the respondent.
The Government show cause notice enclosed the report of Justice Manohar Prasad.
The respondent answered the find ings of the enquiry report and also protested against the report of the Chief Justice saying that the Chief Justice had no authority to add his own remarks and his findings were arrived at without hearing the respondent.
On 22 December, 1953 the matter was referred to the Public Service Commission.
On 27 February, 1954 the Public Service Commission approved compulsory retirement.
On 8 April, 1954 the respondent was compulsorily retired.
On 28 June, 1954 the respondent preferred an appeal to the Rajpramukh.
On 4 November, 1954 the Rajpramukh dis missed the appeal.
In 1957 the respondent filed this suit.
The City Civil Court found that the respondent did not have a chance to meet some of the allegations referred to by the Chief Justice.
The City Civil Court also found that the report of the Chief Justice weighed with the Government.
The City Civil Court also found that the respondent had no reasonable opportunity for defending himself against the imposition of penalty of compulsory retirement.
The High Court held that the findings of the Chief Justice were based to a considerable extent on material which was not produced before the High Court.
The High Court also held that the Government had accepted the report of the Chief Justice both with regard to the guilt and punishment.
The High Court held that since the report of the Chief Justice formed an integral part of the enquiry, the respondent was denied reasonable opportunity at both the stages of enquiry and punishment and, therefore, the compul sory retirement was bad.
On behalf of the appellant it was contended that assum ing the report of the Chief Jusitce was taken into consider ation by the Government the findings of the Chief Justice were based on evidence let in before the Enquiry Officer and not any extraneous circumstances.
It was also submitted that it was open to the Government to accept or reject the recommendation of the Chief Justice on the question of punishment.
The further submission was that the respondent was given a reasonable opportunity at both the stages of the enquiry and punishment, and, therefore, the order of compul sory retirement, is good.
In the alternative it was submitted on behalf of the appellant that the Government of .its own came to the con clusion that compulsory retirement was the proper punish ment, and, therefore, the Government did not act on the recommendation of the Chief Justice.
The report of the Chief Justice referred to the report of the Enquiring Judge.
The Enquiring Judge held that charges relating to the communal bias of the respondent and charges relating to unbecoming conduct of the respondent in relation to engagement of counsel in pending cases were proved.
The Chief Justice in his report said that he was flooded with complaints from lawyers, litigants and from all sides 132 which emanated not only from the members of the Bar but also from responsible officers.
The Chief Justice said in his report that on consideration of all the facts he had not the slightest doubt that in this case leniency would be mis placed and in the interest of purity of services such prac tices, when proved, as they have been proved, must be dealt with firmly.
He, therefore, expressed the opinion that the respondent should be compulsorily retired and he concluded with the observation "let the Government be moved according ly".
Under the Rules the Government has power under rule 12 to impose, inter alia, the penalty of compulsory retirement after consultation with the Public Service Commission where such consultation is necessary.
The Chief Justice recom mended compulsory retirement.
He took note of complaints received by him from lawyers and other persons.
The Chief Justice took note of insubordination which charge was re jected by the Enquiry Officer.
Rule 17(e) of the Rules requires that all orders of punishment shall state the grounds on which they are based and shall be communicated to the person against whom they are passed.
The report of the Chief Justice was not given to the respondent.
The High Court Act did not authorise the Chief Justice to send a supplementary report with his own findings.
The respondent had no reasonable opportunity of making any representation against the report of the Chief Justice of the proposed punishment of compulsory retirement.
The High Court rightly held that the report of the Chief Justice took into consideration extraneous matters, and he was not authorised to do so under the Rules of the High Court Act.
The report submitted by the Chief Justice is not the report of the Administrative Bench.
The High Court rightly held that the Government accepted the Chief Jus tice 's report and took action on it.
The High Court was right in holding that the report of the Chief Justice was based to a large extent on secret information which the respondent had no opportunity of meeting.
The respondent was denied the opportunity of being heard at that stage of enquiry.
The respondent was denied a reasonable opportunity of making a representation against the penalty proposed by the Government.
For these reasons the appeal is dismissed.
The respond ent is entitled to costs.

summary:
The respondent, Munsiff Magistrate, was found guilty in an enquiry held by a High Court Judge, regarding serious allegations against him.
The Chief Justice of the High Court also examined the evidence on his own, and confirming the findings of the Enquiry Officer, recommended compulsory retirement.
Both reports were sent to the Government, and a show cause notice with the Enquiry Officer 's report was issued to the respondent.
Later, with the Public Service Commission 's approval, the respondent was compulsorily retired.
His appeal to the Rajpramukh was dismissed, but the City Civil Court and High Court decided in his favour.
The question before this Court was, whether the Chief Jus tice 's report was in accordance with the Hyderabad Civil Service (Classification, Control and Appeal) Rules and the High Court Act, and whether the failure to communicate it to the respondent, amounted to a denial of reasonable opportu nity for defending himself at the stages of enquiry and punishment.
Dismissing the appeal, the Court, HELD: (1) The report of the Chief Justice of the pro posed punishment of compulsory retirement took into consid eration extraneous matters, and he was not authorised to do so under the Rules, or the High Court Act.
The report was based, to a large extent, oh secret information which the respondent had no opportunity of meeting.
[132 D E] (2) The Government accepted the Chief Justice 's report and took action on it.
The report was not given to the respondent.
He was denied the opportunity of being heard at that stage of enquiry.
The respondent was denied a reasona ble opportunity of making a representation against the penalty proposed by the Government.
[132 E F]


judgement:
TION: Criminal Appeal No. 74 of 1976.
Appeal by Special Leave from the Judgment and 'Order dated 28 7 75 of the Patna High Court in Criminal Revi sion No. 1046 of 1972.
A.K. Sen and A.K. Nag for the Appellant.
D. Gobrudhan, for the respondent.
The Judgment of the Court was delivered by FAZAL ALI, J.
This appeal by special leave exhibits the careless and cavalior manner in which the Sub Divisional Magistrate appears to have dealt with the complaint filed before him as far back as 21st February, 1966.
The com plaint itself contains allegations of a very petty nature, of which hardly any cognizance could have been taken and which would be a trivial act under Sec.
95 of Indian Penal Code for which no criminal proceedings could be taken.
There were proceedings under Section 107 between the parties and both 126 parties applied for copies of .these proceedings on the 20th December, 1965.
It is alleged in the complaint that the appellant got the copy which was meant for the complainant, by signing his name.
The complainant also got his copy a few days after eventually.
Such a small matter could have been resolved by the Magistrate himself if he had persued the complaint carefully and was certainly not a , matter for which a detailed inquiry under section 202, Code of Criminal Procedure, 1908 was called for.
It appears, howev er, that the Magistrate tossed the complaint from one Magis trate to another for inquiry and report, without conclusive results, starting from 21st February 1966 to 23rd November 1968, that is, for a period of more than two years.
Ulti mately, on the 23rd November, 1968 the complaint was dis missed under section 203 of the Criminal Procedure Code on the ground that the complainant was absent and did not show any interest in the inquiry ordered by the Court.
On the 7th of December, 1968 the respondent appeared before the Magistrate and filed an application for recalling his order.
The Magistrate passed no orders on this applica tion but he sent the case ' for inquiry to Mr. K.P. Sinha, another Magistrate.
Thereafter, the matter was sent to Mr. S.N. Dube on 30th of October, 1969.
Mr, Dube reported that the inquiry had been completed and hence he returned the papers.
of inquiry to the Magistrate.
On 9th of Decem ber, 1970, the Magistrate recalled the inquiry from Mr. K.P. Sinha and transferred to Mr. A.R. Ansari and on the basis of his report, the learned Magistrate passed the order taking cognizance of the case and summoned the accused by his order dated 3 5 1972, and issued processes against the appellants.
It would thus appear that a very petty matter was allowed to have a long and chequered career because the Magistrate refused to apply his mind either to the ' allegations made in the complaint or to control the proceedings before him.
In support of the appeal Mr, Nag has submitted a short point.
He has contended that the Magistrate had no jurisdic tion to recall the order dated 23 11 1968, by which he had dismissed the complaint under Section 203 of the Code of Criminal Procedure.
In fact, there was no express order recalling the order dismissing the complaint, but by a process of deeming fiction the Magistrate thought that the order dismissing the complaint stood recalled.
We might mention that the order dated 23rd November, 1968 was a judicial order by which the Magistrate had given full reasons for dismissing the complaint.
Even if the Magistrate had any jurisdiction to recall this order, it could have been done by another judicial order after giving reasons that he was satisfied that a case was made out for recalling the order.
We, however, need not dilate on this point because there is absolutely no provision in the Code of Criminal Procedure of 1908 (which applies to this case) empowering a Magistrate to.
review or recall an order passed by him.
Code of Criminal Procedure does contain a provision for inherent powers, namely, Section 561 A which, however, confers these powers on the High Court and the High Court alone.
Unlike Section 151 127 of Civil Procedure Code, the subordinate criminal courts have no inherent powers.
In these circumstances, there fore, the learned Magistrate had absolutely no jurisdic tion to recall the order dismissing the complaint.
The remedy of the respondent was to move the Sessions Judge or the High Court in revision.
In fact after having passed the order dated 23 11 1968, the Sub Divisional Magistrate became functus officio and had no power to review or recall that order on any ground whatsoever.
In these circumstances, therefore, the order even if there be one, recalling order dismissing the complaint, was entirely without jurisdiction.
This being the position, all subsequent proceedings follow ing upon recalling the said order,would fall to the ground including order dated 3 5 1972 summoning the accused which must also be treated to be a nullity and destitute of any legal effect.
The High Court has not at all considered this important aspect of the matter which alone was sufficient to put an end to these proceedings.
It was suggested by Mr. D. Goburdhan that the application given by him for recalling the order of dismissal of the complaint would amount to a fresh complaint.
We are, however, unable to agree with this contention because there was no fresh complaint and it is now well settled that a second complaint can lie only on fresh facts or even on the previous facts only if a special case is made out.
This has been held by this Court in Pramatha Nath Taluqdar vs Saroj Ranjan Sarkar(1).
For these reasons therefore, the appeal is allowed.
The Order of the High Court maintaining the order of the Magistrate dated 3 5 1972 is set aside and the order of the Magistrate dated 3 5 1972 summoning the appellant is hereby quashed.
M.R. Appeal allowed.
(1) [1962] 2 Supp.
S.C.R. 297.

summary:
The respondent 's complaint against the appellant regarding a trivial matter was tossed for three years between various magistrates for inquiry and report without conclusive re sults, and was ultimately dismissed under section 203 Cr.
P.C. Thereafter on an application by the respondent for recalling his dismissal order, the Magistrate again sent/the case for inquiry ultimately issued process against the accused.
The appellant contended before this Court that the Magis trate had no jurisdiction to recall his order of dismissal.
According to the respondent, his application for recalling the dismissal order, would amount to a fresh complaint.
Allowing the appeal, this Court, HELD: (1 ) There is absolutely no provision in the Code of Criminal Procedure of 1908 (which applies to this case) empowering a Magistrate to review or recall an order passed by him.
Unlike section 151 of the Civil Procedure Code, the subordinate criminal courts have no inherent powers.
After having passed the order, the Sub Divisional Magistrate became functus officio and had no power to review or recall that order on any ground whatsoever.
[126 G H; 127 A] (2) There was no fresh complaint and it is now well settled that a second complaint can be only on fresh facts or even on the previous facts only if a special case is made out.
[127 C D] Pramatha Nath Taluqdar vs Saroj Ranjan Sarkar, ; , followed.