judgement:
Appeal No. 1577 of 1966.
Appeal from the judgment and order dated March 25, 1964 of the Madhya Pradesh High Court in Misc.
Petition No. 31 of 1963.
, I. N. Shroff for the appellant.
The respondent did not appear.
The Judgment of the Court was delivered by Shelat, J.
This appeal, by certificate, is directed against the judgment and the High Court of Madhya Pradesh and 1053 raises the question of the scope of jurisdiction of the Authority under the , 4 of 1936 (hereinafter referred to as the Act.) On the licence of the Barnagar Electric Supply and Industrial Company, of which respondent 1 was at all material times 'the managing director, having been revoked by the Madhya Pradesh Government and the company 's undertaking having been taken over by the Madhya Pradesh Electricity Board, respondent 1 served notices on the company 's employees that their services would no longer be required,as from October 1, 1962.
Thereupon the appellant on behalf of 20 employees of the company filed an application under sec.
15(2) of the Act to recover from respondent 1 wages for the notice month and retrenchment compensation mounting to Rs. 12,853.60P. payable to the employees under sec.
25FF of the .
On respondent 1 contesting the claim as also the jurisdiction of the Authority, the Authority raised certain preliminary.
issues, namely: (1) whether the said application was maintainable in view of the revocation of the company 's licence, (2) whether the Authority had jurisdiction to determine the liability of respondent 1 for retrenchment compensation before the amount thereof was ascertained under sec.
33C(2) of the and (3) whether in view of the services of the workmen not having been interrupted by the said transfer and the terms and conditions of service applicable to them after the said transfer being not in any way less favourable than ' before and the said Board as the new employer being liable after the transfer for compensation in the event of retrenchment, the employees were entitled to claim any compensation.
By his order dated May 21, 1963 the Authority held against respondent 1 on the question of jurisdiction.
Respondent 1 thereupon filed a writ petition in the High Court and Division Bench of the High Court held that sec.
15 of the Act did not apply and that the proper forum for such an application was a Labour Court under sec.
33C(2) of the .
This appeal challenges the correctness of this order.
Mr. Shroff for the appellant contended that after the amendment of the definition of 'wages ' in the Act by Act 68 of 1957 and the amended definition having now included "any sum which by reason of the termination of employment of the person employed is payable under any law,.
contract or instrument which provides for payment of such sum whether with or without deductions but does not provide for the time within which the payment is to be made" as wages, there could be no doubt that the legislature has conferred jurisdiction ' on the Authority under the Act to determine compensation payable under sec.
25FF of the in an application under sec.
15(2) of the Act and that therefore the High Court Was in error in quashing the order :passed by the Authority.
Mr, Chagla appearing for the 1054 Respondents 1 and 2 in ,the next appeal,on the other hand, contended (1 ) that the Authority under the Act was a special Authority with limited jurisdiction, that it has to deal only with the subject matters specified in the Act and its jurisdiction must therefore be strictly construed, and (2) that the Act and the deal with different subjects, provide different tribunals with different jurisdictions and therefore it is not possible to hold that Parliament which enacted both the Acts could possibly have contemplated that claim arising under the should be determined by a tribunal set up under a different Act.
On these contentions the first question ' which arises for determination is whether compensation payable under sec.
25FF of the can fall under the amended definition in sec.
2(vi)(d) of the Act and can be Called 'wages '.
The High Court.
thought that it was not but Mr. Shroff relied on certain decisions of ' this Court to contest that part of the conclusion of the High Court.
The , which as enacted in 1947, was a piece of 'legislation which mainly 'provided machinery for investigation and settlement of industrial` disputes, has since then undergone frequent modifications.
In 1953, by Act 43of that year Chapter VA consisting of secs.
25A to 25J was incorporated providing therein compensation for lay off and retrenchment.
It also provided a definition of retrenchment in sec.
2(00).
Chapter VA, as it then stood, did not expressly provide for compensation for termination of service on account of transfer of an undertaking by an agreement or as a result of operation of law or the closure of the undertaking.
Consequently, in Hariprasad vs Divikar(1) this Court held that retrenchment as defined in sec.
2(00) and the word 'retrenched ' in sec, 25F meant discharge of surplus labour or staff by the employer for any reason whatsoever otherwise than as a punishment inflicted by way of disciplinary action and did not include termination of services of all workmen on a bona fide closure of an undertaking or on a change of ownership or management thereof.
This decision was followed first by an ordinance and then by Act 18 of 1957 incorporating in the Act the present sections 25FF and 25FFF.
It will he noticed that both these sections use the words " 'as 'if the workman had been retrenched".
The intention of the legislature was, therefore, clear that it did not wish to place transfer and closure 'on the same footing as retrenchment under sec.
25F. This is apparent also from the fact that it left the definition of retrenchment in sec, 2(00) untouched in spite of the decision in Hariprasad 's case(1).
The three sections, sections 25F, 25FF and 25FFF 'also ;show ' that while under sec.
25F.no retrenchment Can be made until Conditions therein set out are Carried.
out the other two sections do ' not lay down any such conditions.
All the ,three sections however, (1)[1957] S.C.R. 121.
1055 involve termination of service whether it results in consequence of retrenchment or transfer or closure, and notice and compensation in both sections 25FF and 25FFF have been provided for "in accordance with the provisions of sec.
(see M/s Harisingh Mfg. Co. Ltd. vs Union of India(1) and Anakapalla Co operative Agricultural and Industrial Society Ltd. vs Workmen(2).
That being the position a workman whose service is terminated in consequence of a transfer of an undertaking, whether by agreement or by operation of law, has a statutory right under sec.
25FF to compensation unless such right is defeated under the proviso to that section.
The same is the position in the case of closure under sec.
25FFF.
Such compensation would be wages as defined by sec.
2(vi)(d) of the Act as it is a "sum which by reason of the termination of employment of the person employed, is payable under any law . which provides for the payment of such sum whether with or without deductions but does not provide for the time within which the payment is to be made.
" Since sections 25FF and 25FFF do not contain any conditions precedent, as in the case of retrenchment under sec.
25F, and transfer and closure can validly take place without notice or payment of a month 's wages in lieu thereof or payment of compensation, sec.
25FF can be said not to have provided any time within which such compensation is to be paid.
It is well established that the words "in accordance with the provisions of sec.
25F" in sections 25FF and 25FFF are used only as a measure of compensation and are not used for laying down any time within which the employer must pay the compensation.
It would, therefore, appear that compensation payable under sections 25FF and 25FFF read with sec.
25F would be 'wages ' within the meaning of sec.
2(vi)(d) of the Act.
It must, however, be remembered that though such compensation falls within the definition of wages, cases may arise where it would not be a simple question of recovery of wages.
In the present case, for instance, the defence taken by respondent 1 was that he was not the person responsible for payment of compensation and that the right of the workmen was defeated by reason of the proviso to sec.
25FF being, according to him, applicable inasmuch as these workmen were continued in the employment by the said Board, the new employer, that therefore there had been no interruption in their employment, that the terms and conditions of service given to them by the new employer were in no way less favourable than those they.
had when the company was the employer, and that the new employer was responsible for payment of compensation if any retrenchment took place in future.
The question, therefore, is whether in view of the limited jurisdiction of the Authority under see.
15(2) of the Act, it was intended to deal with such questions, which in some cases might well raise complicated problems of both fact and law.
(1) ; (2) [1963] Supp.
(1) S.C.R. 730.
L 6Sup CI/69 16 1056 While considering the scope of jurisdiction of the Authority under sec.
15 of the Act it is relevant to bear in mind the fact that the right to compensation is conferred by the which itself provides a special tribunal for trying cases of individual workmen to whom compensation payable under Ch.
VA has not been paid.
Section 33C of that Act provides both a forum and the procedure for computing both monetary as well as non monetary benefits in terms of money and further provides machinery for recovery of such claims.
In Punjab National Bank Ltd. vs Kharbanda(1) this Court held that while sub sec.
1 of sec.
33C applied to cases where any money was due to a workman from an employer under a settlement, award or under the provisions of Ch.
VA and the amount was already computed or calculated or at any rate there could be no dispute about its calculation or computation, sub sec.
2 applied to benefits including monetary benefits conferred on a workman under an award, settlement etc.
, but which had not been calculated or computed and there was a dispute as to their calculation or computation.
The Court rejected the contention that sub sec.
2 applied only to a non monetary benefit which had to be converted in terms of money.
The Court also observed that sec.
33C was a provision in the nature of execution and where the amount to be executed was worked out or where it might be worked out without any dispute sub sec.
1 would apply, but where such amount due to the workman was not stated or worked out and there was a dispute as to its calculation, sub.sec. 2 would apply and the workman would be entitled to apply thereunder to have the amount computed provided he was entitled to a benefit, whether monetary or non monetary, which was capable of being paid in terms of money.
In the Central Bank of India Ltd. vs Rajagopalan(2) this Court held that where the right of a workman was disputed by his employer the Labour Court could go into the question as to whether he had a right to receive such a benefit.
Sub sec.
3 of sec.
33C under which the Labour Court can appoint a commissioner to take evidence for computing the benefit postulates that it has the jurisdiction to decide whether the workman claiming benefit was entitled to it where such right was disputed by the employer.
In Bombay Gas Co. Ltd. vs Gopal Bhiva(3) this Court held that the Labour Court could in an application under sec.
33C(2) go even into the question whether the award under which the workman had made a claim was a nullity.
Being in the nature of an executing court it could interpret the award and also consider the plea that the award sought to be enforced was a nullity.
It is thus clear that a workman whose claim, monetary or otherwise, is disputed by his employer can lodge such a claim before a specified Labour Court under sec.
33C and obtain an inexpensive and expeditious remedy.
The (1) [1962] Supp. 2 S.C.R. 977.
(2) ; (3) ; 1057 question then is whether for such a claim the legislature intended to provide alternative remedies both under the and the .
For deciding this question it is necessary to refer to some of the provisions of and the scheme of the .
The Act was passed to regulate the payment of wages to certain classes of persons employed in any factory or by a railway administration or by a person fulfilling a contract with a railway administration or in any industrial establishment to which a State Government by notification has extended the Act.
Section 3 lays down as to who shall be responsible for payment of wages.
Section 4 provides for the fixation of wage periods and sec.
5 lays down the time within which payment of wages has to be made.
Sec. 7 provides that wages shall be paid without any deductions except those authorised by the Act and sec.
8 provides that no fine shall be imposed on any employed person save in respect of such acts or omissions on his part as the employer with the previous approval of the State Government or the prescribed authority may have specified by notice.
Sections 9 to 13 lay down the deductions which an employer is authorised to make and the conditions under which such deduction can be made.
Section 13A provides for the maintenance of certain registers and records by the employer and sections 14 and 14A provide for appointment of inspectors under the Act, their powers and the facilities to be afforded by the employer to such inspectors.
Section 15 (1 ) provides for the appointment of a person to be the Authority under the Act to hear and decide for any specified area claims arising out of (a) deduction from wages or (b) delay in payment of wages of persons employed or paid in that area including all matters incidental to such claims.
Sub sec.
2 provides that "Where contrary to the provisions of this Act any deduction has been made from the wages of an employed person, or any payment of wages has been delayed, such person himself, or any legal practitioner or any official of a registered trade union or any inspector under this Act, or any other person acting with the permission of the authority . . may apply to such authority for a direction under sub sec.
" The first proviso to sub sec.
2 lays down a period of limitation of 12 months from the date of deduction or the due date of payment and the second proviso empowers the Authority to admit applications beyond the period of limitation on sufficient cause being shown.
Sub sec.
3 empowers the Authority to direct refund to the employed person of the amount deducted, or the payment of the delayed wages and also empowers it to award compensation specified therein without prejudice to any other penalty to which the employer guilty of unauthorised deduction or delay in payment is liable under the Act.
Under sub sec.
5 of sec.
15 the amount 1058 awarded by the authority can be recovered as if it were a fine imposed by a magistrate.
Section 20 provides for penalty for offences under certain provisions of sections 5, 7, 8, 9, 10 and 11 to 13 extending upto Rs. 500/ .
It is explicit from the terms of sec.
15(2) that the Authority appointed under sub sec.
1 has jurisdiction to entertain applications only in two classes of cases, namely, of deductions and fines not authorised under sections 7 to 13 and of delay in payment of wages beyond the wage periods fixed under sec.
4 and the time of payment laid down in sec.
This is clear from the opening words of sub sec.
2 of sec.
15, namely, "where contrary to the provisions of this Act" any deduction has been made or any payment of wages has been delayed.
These being the governing words in the sub sec.
the only applications which the Authority can entertain are those where deductions unauthorised under the Act are made from wages or there has been delay in payment beyond the wage period and the time of payment of wages fixed or prescribed under sections 4 and 5 of the Act.
Section 15(2) postulates that the wages payable by the person responsible for payment under sec.
3 are certain and such that they cannot be disputed.
In D 'Costa vs
B.C. Patel(1) this Court held after considering the scheme of the Act that the jurisdiction of the Authority under sec.
15 was confined to deductions and delay in payment of the actual wages to which the workman was entitled and that the Authority under the Act had no jurisdiction to enter into a question of potential wages, i.e., where the workman pleads that he ought to have been up graded as persons junior to him were upgraded and that he ought to have been paid wages on a scale paid to those so up graded.
This Court held that the Authority had jurisdiction to interpret the terms of a contract of employment to find out the actual wages payable to the workman where deduction from or delay in payment of such wages is alleged, but not to enter into the question whether the workman should have been up graded from being a daily rated worker to a monthly rated workman.
In Shri Ambica Mills Co. Ltd. vs
S.B. Bhatt(2) this Court again examined the scheme of the Act and held that the only claims which could be entertained by the Authority were claims arising out of deductions or delay made in the payment of wages.
The Court, however, observed that in dealing with claims arising out of deductions or delay made in payment of wages the Authority inevitably would have to consider questions incidental to these matters, but in determining the scope of these incidental matters care must be taken to see that under the guise of deciding incidental matters the limited jurisdiction was not unreasonably or unduly expanded.
Equally, care must also be taken (1) ; (2) [1961] 3 S.C.R. 220. 1059 to see that the scope of these incidental matters was not unduly curtailed so as to affect or impair the limited jurisdiction conferred on the Authority.
The Court declined to lay down any hard and fast rule which would afford a determining test to demarcate the field of incidental facts which could be legitimately considered by the Authority and those which could not be so considered.
It is true, as stated above, that the Authority has the jurisdiction to try matters which are incidental to the claim in question.
Indeed, sec.
15(1) itself provides that the Authority has the power to determine all matters incidental to the claim arising from deduction from or delay in payment of wages.
It is also true that while deciding whether a particular matter is incidental to the claim or not care should be taken neither to unduly expand nor curtail the jurisdiction of the Authority.
But it has at the same time to be kept in mind that the jurisdiction under sec.
15 is a special jurisdiction.
The Authority is conferred with the power to award compensation over and above the liability for penalty of fine which an employer is liable to incur under sec.
The question, therefore, is whether on the footing that compensation payable under sections 25FF and 25FFF of the being wages within the meaning of sec.
2(vi)(d) of the Act, a claim for it on the ground that its payment was delayed by an employer could be entertained under sec.
15(2) of the Act.
In our view it could not be so entertained.
In the first place, the claim made in the instant case is not a simple case of deductions having been unauthorisedly made or payment having been delayed beyond the wage periods and the time of payment fixed under sections 4 and 5 of the Act.
In the second place, in view of the defence taken by Respondent 1, the Authority would inevitably have to enter into questions arising under the proviso to sec.
25FF, viz., whether there was any interruption in the employment of the workmen, whether the conditions of service under the Board were any the less favourable than those under the company and whether the Board, as the new employer, had become liable to pay compensation to the workmen if there was retrenchment in the future.
Such an inquiry.
would necessarily be a prolonged inquiry involving questions of fact and of law.
Besides, the failure to pay compensation on the ground of such a plea cannot be said to be either a deduction which is unauthorised under the Act, nor can it fall under the class of delayed wages as envisaged by sections 4 and 5 of the Act.
It may be that there may conceivably be cases of claims of compensation which are either admitted or which cannot be disputed which by reason of its falling under the definition of wages the Authority may have jurisdiction to try and determine.
But we do not think that a claim for compensation under sec.
25FF which is denied by the employer on the ground that it 1060 was defeated by the proviso to that section, of which all the conditions were fulfilled, is one such claim which can fall within the ambit of sec.
15(2).
When the definition of wages was expanded to include cases of sums payable under a contract, instrument or a law it could not have been intended that such a claim for compensation which is denied on grounds which inevitably would have to be inquired into and which might entail prolonged inquiry into questions of fact as well as law was one which should be summarily determined by the Authority under sec.
Nor could the Authority have been intended to try as matters incidental to such a claim questions arising under the proviso to sec.
In our view it would be the Labour Court in such cases which would be the proper forum which can determine such questions under sec.
33C(2) of the which also possesses power to appoint a commissioner to take evidence where question of facts require detailed evidence.
Mr. Shroff, however, drew our attention to the decision in Uttam Chand vs Kartar Singh(1) a decision of a learned Single Judge of the High Court of Punjab, taking a view contrary to the one which we are inclined to take.
But that decision contains no reasons and is, therefore, hardly of any assistance.
In the result we agree with the High Court that the Authority had no jurisdiction under sec.
15(2) of the Act to try these applications.
The appeal consequently must fail and is dismissed.
But we make no order as to costs.
Appeal dismissed.

summary:
The State Electricity .
Board revoked the licence of a company and took over the undertaking.
The 1st respondent, who was the director of the company, served notices on the employees that their services would not be required.
Thereupon, the appellant filed an application under section 15(2) of the , on behalf of the employees, for recovering from the it respondent wages for the notice month and retrenchment compensation under section 25FF of the Industrial Disputes Act.
The 1st respondent contested the claim as well as the jurisdiction of the authority under the to deal with the application, on the ground 'that he was not the person responsible for payment of com pensation and that the right of the workmen was defeated by reason of the proviso to section 25FF of the Industrial Disputes Act, because there was no interruption in their employment and the new employer (the Electricity Board) was responsible for payment of the compensation.
But the Authority held against the 1st respondent.
The 1st respondent then filed a writ petition in the High Court and the High Court held that section 15 of the Act did not apply and that the proper forum for such an application was the Labour Court under section 33C(2) of the .
In appeal to this Court, on the questions: (1) Whether compensation payable under section 25FF of the can fall under the amended definition of wages in section 2(vi)d of the payment of Wages Act, as it is a 'sum which by reason of the termination of employment of the person employed, is payable under any law . which provides for the PaYment of such sum whether with or without deductions but does not provide for the time within which the payment is to be made ' and (2) Whether the authority under section 15 of the had jurisdiction to entertain the application, HELD: (1) The three sections, namely section 25F introduced into the , by Act 43 of 1951, and sections 25FF and 25FFF incorporated by Act 18 of 1957, involve termination of service in consequence of retrenchment, transfer and closure respectively.
In sections 25FF and 25FFF notice and compensation have been provided for 'in accordance with the provisions of section 25F '.
These words are used only as a measure of compensation and are not used for laying down any time within which the employer must pay compensation.
Since section 25FF unlike section 25F, does not contain any conditions precedent, it can be said not to have provided any time within which such compensation is to be paid.
Therefore, the compensation payable under section 25FF read with section 25F of the would be wages within the meaning of section '2 (vi)(d )of the Payment of.
Wages Act.
[1055 C E] 1052 M/s. Hatisingh Mfg. Co. Ltd. vs Union of India, ; and ,Anakapalla Co operative Agricultural and Industrial Society Ltd. vs Workmen, [1963] Supp. 1 S.C.R. 730, followed.
(2) The words 'where.
contrary to the provisions of the Act, in section 15(2) of the being the governing words, the Authority appointed under section 15(1) has jurisdiction to entertain applications only in two classes of cases, namely, of deductions and fines not authorised under sections 7 to 13 of.
the and of delay in payment of wages beyond the wage periods fixed under section 4 and time in payment laid down in section 5.
Section 15(1) provides that the Authority has the power to determine all matters incidental to the claim arising from deductions from or delay in payment of wages, but while deciding whether a particular matter is incidental to the claim or not.
care should be taken neither to unduly expand or curtail the jurisdiction of the Authority, because, the jurisdiction is a special jurisdiction.
Section 15(2) postulates that the wages payable by the person responsible for payment under section 3 are certain and such that they cannot be disputed.
[1058 B D] In the present case, (a) the claim was not a simple.
case of deduction/ions having been unauthorisedly made or payment having been delayed beyond the wage periods or the time of payment fixed under sections 4 and 5 of the Act; (b) In view of the defence taken by the 1st respondent, the failure to pay compensation did not fall under sections 4 and 5 of the Act; and (c) The claim for compensation denied by the employer in the circumstance could not fall within the ambit of section 15(2).
[1059 H] It could not have been intended that such matters could be tried by the Authority under the Act as matters incidental to the claim of compensation under section 25FF.
The proper forum would be the Labour Court which can decide such questions under section 33C(2) of the , since such court can go up into those matters fully, expeditiously and without expense.
[1060 C] Punjab National Bank Ltd. vs Kharbanda, [1962] Supp. 2 S.C.R. 977, Central Bank of India Ltd. vs Rajagopalan, ; , Bombay Gas Co. Ltd. vs Gopal Bhiva, ; , D 'Costa vs B.C. Patel, [1955] 1 S.C.R. 1353 and Shri Ambica Mills Co. Ltd. vs 5.
B. Bhatt ; , referred to.


judgement:
iminal Appeal No. 33 of 1953.
Appeal under article 132(1) of the Constitution of India from the Judgment and Order, dated the 20th February, 1953, of the High Court of Judicature at Madras in Criminal Revision Case No. 1034 of 1953 (Criminal Reference No. 51 of 1953).
C. Daphtary, Solicitor General for India, V. K. T. C Chari, Advocate General for Madras (Porus A. Mehta and P. G. Gokhale, with them) for the appellant.
M. K. Nambiar, (section Subramanian, with him) for the respondent.
C.K. Daphtary, Solicitor General for India (Porus A. Mehta and P. G. Gokhale with him) for the Intervener (Union of India).
281 1954.
May 19.
The Judgment of the Court was delivered by MEHAR CHAND MAHAJAN C. J.
This is an appeal on a certificate under article 132(1) of the Constitution against the judgment of the High Court of Judicature at Madras dated the 20th February, 1953, holding that section 14 of the Fugitive Offenders Act, 1881, is void as it offends against the provisions of the Constitution being discriminatory in its effect.
The respondents, husband and wife, were apprehended and produced before the Chief Presidency Magis trate, Egmore, Madras, pursuant to warrants of arrest issued under the provisions of the Fugitive Offenders Act, 1881.
Mr. Menon is a barrister at law, and was practising as an advocate and solicitor in the Colony of Singapore.
Mrs. Menon is an advocate of the Madras High Court and was until recently a member of the Legislative Council of the Colony of Singapore.
Both of them came to India some time after July, 1952.
On the 22nd August, 1952, the Government of Madras forwarded to the Chief Presidency Magistrate, Madras, copies of communications that passed between the Government of India and the Colonial Secretary of Singapore requesting the assistance of the Government ' of India to arrest and return to the Colony of Singapore the Menons under warrants issued by the Third Police Magistrate of Singapore.
Mr. Menon was charged on several counts of having committed criminal breach of trust and Mrs. Menon was charged with the abetment of these offences.
The Menons, when produced before the Presidency Magistrate questioned the validity of their arrest.
They pleaded their innocence and contended that being citizens of India, they could not be surrendered as.
the warrants related to matters of a civil nature and had been given the colour of criminal offences merely for the purpose of harassing them out of political animosity and with a view to prejudice the Court against them and were issued in bad faith.
It was further urged that the provisions of the Fugitive Offenders Act under which action was sought to be taker against them were 282 repu gnant to the Constitution of India and were void and unenforceable.
The Presidency Magistrate expressed the view that by retaining the , and with it Chapter IV, the President of India may have intended to give effect to the Fugitive Offenders Act, 1881, but by the omission to adapt or modify it suitably it had become impossible to give effect to that intention, the provisions of the Act, as they are, being inconsistent with and repugnant to the sovereign status of the Indian Republic.
In view, however, of the provisions of section 432, Criminal Procedure Code, as amended by Act XXIV of 1951, he referred to the decision of the High Court the following questions of law: (1) Whether the Fugitive Offenders Act, 1881, applies to India after 26th January, 1950, when India became a Sovereign Democratic Republic; and (2) Whether, even if it applied, it or any of its pro visions, particularly Part II thereof, is repugnant to the Constitution of India and is therefore void and or inoperative.
The High Court held that section 14 of the Fugitive Offenders Act was inconsistent with the fundamental right of equal protection of the laws guaranteed by article 14 of the Constitution and was void to that extent and unenforceable against the petitioner.
The second question referred having thus been answered in favour of the respondents, it was not thought necessary to return any answer to the first question.
As above stated, a certificate under article 132(1) of the Constitution for leave to appeal to the Supreme Court against this decision was granted to the State of Madras.
The Union of India was allowed to intervene at their request.
The learned Solicitor General who argued the case on behalf of the Intervener as well as on behalf of the State of Madras conceded that the Fugitive Offenders Act, 1881, was not adapted by any specific order of the President, and that the Parliament in India had not enacted any Legislation on its lines.
He, however, contended that the omission to adapt the impugned Act 283 in no way affected the question whether it was in force as the law in the territory of India after the commencement of the Constitution.
Reliance was placed on article 372 (1) of the Constitution which is in these terms: Notwithstanding the repeal by this Constitution of the enactments referred to in article 395 but subject to the other provisions of this Constitution, all the law in force in the territory of India immediately before the commencement of this Constitution shall continue in force therein until altered or repealed or amended by a competent Legislature or other competent authority.
" And it was said that the impugned Act was the law in force in the territory of India immediately before the commencement of the Constitution and continued in force under the provisions of this article after its commencement.
It was also said that the adaptations made in the , by implication kept alive the Fugitive Offenders Act, 1881, and its different provisions.
In order to decide whether Part 11 of the Fugitive Offenders Act, 188 1, comprising sections 12 and 14 under the provisions of which the Menons are under arrest, has force after the coming into force of the Constitution, it is necessary to appreciate the relevant provisions of the Act.
The Fugitive Offenders Act, 188 1, as enacted by the British Parliament is sub divided into four parts and is comprised.
of 41 sections.
Part I of the Act concerns itself with offences mentioned in section 9.
Section 5 of this part provides that a fugitive when apprehended shall be brought before a Magistrate who shall hear the case in the same manner and have the same jurisdiction and powers, as near as may be, as if the fugitive was charged with an offence committed within his jurisdiction, and that if the endorsed warrant for the apprehension of the fugitive is duly authen ticated, and such evidence is produced as according to the law ordinarily administered by the magistrate raises a strong or probable presumption that the fugitive committed the offence mentioned in the warrant, and that the offence is one to which this part of this Act 284 applies, the magistrate shall commit the fugitive to prison to await his return, and shall forthwith send a certificate of the committal and such report of the case as he may think fit, if in the United Kingdom to a Secretary of State, and if in a British Possession to the Governor of that possession.
Section 12 which is the first section in Part II of the Act is in these terms : "This part of this Act shall apply only to those groups of British Possessions to which, by reason of their contiguity or otherwise, it may seem expedient to Her Majesty to apply the same.
It shall be lawful for Her Majesty from time to time by Order in Council to direct that this part of this Act shall apply to the group of British possessions mentioned in the Order, and by the same or any subsequent Order to except certain offences from the application of this part of this Act, and to limit the application of this part of this Act by such conditions, exceptions, and qualifications as may be deemed expedient.
" Section 14 which is directly in point so far as the respondents are concerned provides as follows : "The magistrate before whom a person so apprehended is brought, if he is satisfied that the warrant is duly authenticated as directed by this Act and was issued by a person having lawful authority to issue the same, and is satisfied on oath that the prisoner is the person named or otherwise described in the Warrant, may order such prisoner to be returned to the British Possession in which the warrant was issued, and for that purpose to be delivered into the custody of the person to whom the warrant is addressed, or any or more of them, and to be held in custody and conveyed by sea or otherwise into the British Possession in which the warrant was issued, there to be dealt with according to law as if he had been there apprehended.
Such order for return may be made by warrant under the hand of the magistrate making, it, and may be executed according to the tenor thereof" A comparison between the provisions of Part I and Part II of the Act makes it clear that with regard to 285 offences relating to which Part I has application a fugitive when apprehended could not be committed to prison and surrendered unless the magistrate was satisfied that on the evidence produced before him there was a strong or probable case against him, while in regard to a fugitive governed by Part II of the Act it was not necessary to arrive at such a finding before surrendering him.
There is thus a substantial and material difference in the procedure of surrendering fugitive offenders prescribed by the two parts of the Act.
The scheme of the Fugitive Offenders Act is that it classifies fugitive offenders in different categories and then prescribes a procedure for dealing with each class.
Regarding persons committing offences in the United Kingdom and British Dominions and foreign countries in which the Crown exercises foreign jurisdiction, the procedure prescribed by Part I of the Act has to be followed before surrendering them and unless a prima facie case is established against them they cannot be extradited.
Extradition with foreign States is, except in exceptional cases, governed by treaties or arrangements made inter se.
Extradition of offenders between the United Kingdom and the Native States in India is governed by the .
Under the provisions of that Act no person apprehended could be surrendered unless prima facie case was made out against him.
Extraditions inter se between British possessions, however, were dealt with differently by the Act.
They were grouped together according to their contiguity etc.
by an Order in Council and treated as one territory and this grouping was subject to alterations and modifications by Order in Council and conditions of extradition.
could also be prescribed by such an Order.
An Order in Council dated the 2nd January, 1918, .grouped together the following British Possessions and Protected States with British India for the purposes of Part II of the Act : Ceylon, Hongkong, the Straits Settlements, the Federated Malay States, Johore, Kedah and Perlis, Kelantan, Trengannu, Brunei, North Borneo and Sarawak.
The Order is these terms: 286 ",Whereas by an order of Her Majesty Queen Victoria in Council bearing date the 12th day of December, 1885, it was ordered that Part 11 of the Fugitive Offenders Act, 1881, should apply to the ,group of British Possessions therein mentioned, that is to say, Her Majesty 's East Indian Territories, Ceylon and the Straits Settlements; And whereas by the Straits Settlements and Protected States Fugitive Offenders Order in Council, 1916, as amended by the Straits Settlements and Protected States Fugitive Offenders Order in Council, 1917, it is ordered that the Fugitive Offenders Act, 1881, shall apply as if the Protected States named in the schedule to the first mentioned order were British Possessions ; And whereas by reason of their contiguity or the frequent intercommunication between them it seems expedient to His Majesty and conducive to the better administration of justice therein to apply Part II of the Fugitive Offenders Act, 1881, to the above named British Possessions and Protected States and such application has been requested by the Rulers of the said States ; Now therefore, His Majesty, by virtue of the powers in this behalf by the Fugitive Offenders Acts, 1881 and 1915, and otherwise in His Majesty vested is pleased, by and with the advice of His Privy Council, to order, and it is hereby ordered, as follows : On and after the first day of February, 1918, the herein before recited Order in Council of the 12th day of December, 1885, shall be revoked, without prejudice to anything lawfully done thereunder or to any proceedings commenced before the said date, and Part II of the Fugitive Offenders Act, 1881, shall apply to the group of British Possessions and Protected States hereunder mentioned, that is to say, British India, Ceylon, Hongkong, Straits Settlements, the Federated Malay States, Johore, Kedah and Perlis, Kelantan, Trengannu, Brunei, North Borneo and Sarawak.
" 287 By another Order in Council dated the 29th July, 1937, Burma which ceased to be part of British India was also included in the group of British Possessions and Protected States mentioned in the earlier Order in Council.
It is plain from the above provisions of the Act as well as from the Order in Council that British Possessions which were contiguous to one another and between whom there was frequent inter communication were treated for purposes of the Fugitive Offenders Act as one integrated territory and a summary procedure was adopted for the purpose of extraditing persons who had committed offences in these integrated territories.
As the laws prevailing in those possessions were substantially the same, the requirement that no fugitive will be surrendered unless a prima facie case was made against him was dispensed with.
Under the , also a similar requirement is insisted upon before a person can be extradited.
The situation completely changed when India became a Sovereign Democratic Republic.
After the achievement of independence and the coming into force of the new Constitution by no stretch of imagination could India be described as a British Possession and it could not be grouped by an Order in Council amongst those Possessions.
Truly speaking, it became a foreign territory so far as other British Possessions are concerned and the extradition of persons taking asylum in India, having committed offences in British Possessions, could only be dealt with by an arrangement between the Sovereign Democratic Republic of India and the British 'Government and given effect to by appropriate legislation.
The Union Parliament has not so far enacted any law on the subject and it was not suggested that any arrangement has been arrived at between these two Governments.
The , has been adapted but the Fugitive Offenders Act, 1881, which was an Act of the British Parliament has been left severely alone.
The provisions of that Act could only be made applicable to 288 India by incorporating them with appropriate changes into an Act of the Indian Parliament and by enacting an Indian Fugitive Offenders Act.
In the absence of any legislation on those lines, it seems difficult to hold that section 12 or section 14 of the Fugitive Offenders Act has force in India by reason of the provisions of article 372 of the Constitution.
The whole basis for the applicability of Part II of the Fugitive Offenders Act has gone; India is no longer a British Possession and no Order in Council can be made to group it with other British Possessions.
Those of the countries which still form part of British Possessions and which along with British India were put into a group may legitimately decline to reciprocate with India in the matter of surrender of fugitive offenders on the ground that notwithstanding article 372 of our Constitution India was no longer a British Possession and therefore the Fuogitive Offenders Act, 1881, did not apply to India and they were not bound in the absence of a new treaty to surrender their nationals who may have committed extraditable offences in the territories of India.
Indeed some of the other members of this group have also achieved independence.
Under section 12 of the Act it is not possible for His Majesty from time to time by Order in Council to alter the character of this group or its composition or to take any action as prescribed by that section.
Article 372 of the Constitution cannot save this law because the grouping is repugnant to the conception of a sovereign democratic republic.
The political background and shape of things when Part II of the Fugitive Offenders Act, 1881, was enacted and envisaged by that Act having completely changed, it is not possible without radical legislative changes to adapt that Act to the changed conditions.
That being so, in our opinion, the tentative view expressed by the Presidency Magistrate was right and though the High Court did not return the answer to the first question referred to it, in our judgment, the case can be shortly disposed of on that ground.
The contention of the learned Solicitor General that by reason of the adaptations made in the Indian and references wade therein to Extradition Act, 1903, the Fugitive Offenders Act, it should be held that the whole of the Fugitive Offenders Act including PartII had been adapted by the President does not seem to be well founded.
The scheme of the which was founded on the English Act is quite different.
It does not specifically keep alive any of the provisions of Part II of the Fugitive Offenders Act, 1881, and thefere is no adaptation of the Fugitive Offenders Act, 1881 within the four corners of the .
In these circumstances it is not possible to work out the sections of the Fugitive Offenders Act and apply them to the situation that has arisen after the coming into force of the Constitution of India.
Moreover clause 28 of the Adaptation of Laws Order, 1950, can have no application to such a case.
We do not think that it is necessary in the present case to enter into a discussion of the question whether British Possessions with which India was grouped under Part 11 of the Fugitive Offenders Act, 1881, should now be treated as foreign States qua India and that offenders apprehended can be surrendered under the or any other law, provided a prima facie case is made against them as the proceedings taken against the respondents were specifically taken Under section 14 of the Fugitive Offenders Act, 1881, and it is not the practice of this Court to decide questions which are not properly raised before it or which do not arise directly for decision.
For the reasons given above we uphold the decision of the High Court, though on a ground different from that on which that Court decided, in favour of the respondents.
The appeal therefore fails and is dismissed.
Appeal dismiesed.

dataset_name: IN-Abs

summary:
After the achievement of independence and the coming into force of the new Constitution India became a Sovereign Demo cratio Republic and could not be described as a British Possession or grouped by an Order in Council amongst those Possessions within the meaning of section 12 of the Fugitive Offenders Act, 1881.
It became a foreign country so far as other British Possessions &re concerned and the extradition of persons taking asylum in India, having committed offences in British Possessions could only be dealt with by an arrangement between the Sovereign Democratic Republic of India and the British Government and given effect to by appropriate Legislation.
The (Act XV of 1903) has been adapted under the provisions of article 372 of the Constitution but this Act has not kept &live any of the provisions of the Fugitive Offenders Act, 1881, which was an act of the British Parliament and which has not been adopted and therefore section 12 and section 14 of the Fugitive Offenders Act, 1881, have no application to India.


judgement:
l Appeal No. 1519 of 1968.
Appeal under section 116A of the Representation of the People Act, 1951 from the judgment and order dated May 28, 1968 of the Madras High Court in Election Petition 11 of 1967.
R.M. Seshadri and R. Gopalakrishnan, for the appellant.
section V. Gupte, A. C. Muthanna, S.S. JavaIi, Anjali K. Verma and O.C. Mathur, for respondent No. 1.
G. Ramanujam and A. V. Rangam, for intervener.
C.J., This appeal is directed against the judgment of the High Court of Madras, 28th May 1968, by which the election of the appellant Seshadri has been set aside.
The election in question was to the Madras Legislative Council from the Madras District Graduates Constituency.
That constituency consisted of 19,498 votes and the total votes polled were 12,153.
Since the voting was by a single transferable vote, three 1029 out of the five candidates were eliminated at different counts with the result that their votes were transferred to the second person named by the elector on the ballot.
At the final count the appellant Seshadri received 5643 votes and G. Vasantha Pai (his nearest rival) who is the first respondent in 'the appeal received 5388 votes.
Seshadri was, therefore, elected by a majority of 255 votes.
The election petition was filed by G. Vasantha Pai to question the election of Seshadri on many grounds.
Only one ground prevailed, namely, that he had employed cars which had been hired or procured for the conveyance of the voters to the polling booths which numbered 73 in this constituency.
The other charges were numerous but they need not be mentioned here because in our opinion this charge has been substantiated.
It may be mentioned that Seshadri filed a petition of recrimination but it was dismissed because he failed to furnish security required under the Act.
Later he corrected this mistake but the petition was not accepted because it was held to be delayed.
The learned Judge who ' heard the case held that instead of Seshadri, Vasantha Pai deserved to be declared elected under the law.
In this appeal, therefore, Seshadri contends that the decision in his respect was erroneous and in the alternative that in any event Vasantha Pal could not be declared as the successful candidate.
We shall deal with these two points separately.
It may further be mentioned that in the original order passed by the learned Judge he had not named Seshadri as guilty of corrupt practice.
By a subsequent order he reviewed his previous order and gave a declaration.
This point also will require to be considered in this judgment.
The allegation in the election petition was that a large number of motor cars were hired or procured from various sources for the conveyance of the voters to the polling booths.
These were sometimes occupied by persons wearing badges which bore the name of Seshadri and sometimes were received at the polling booths by persons who wore the same badges.
From this, it is inferred that the motor cars were used for the conveyance of voters by Seshadri as one of the contesting candidates.
Such conduct, if it is established, amounts to a corrupt practice under section 123(5) of the Representation of People Act.
The short question, therefore, on the first point is whether Seshadri was guilty of this corrupt practice.
The appeal has been fought by Seshadri on the grounds that the plea which was included on this head in the election petition was vague and not sufficiently definite so as to give him notice of the charge he had to meet, that a charge of corrupt practice is of the nature of a criminal charge and must therefore be 1022 proved by the election petitioner himself beyond all reasonable doubt, that there exists some room for doubt and therefore he should have the benefit of it and that the learned Judge who tried the case improved both the pleading on the subject and the evidence led by the election petitioner by calling certain witnesses and looking into documents which he had procured on his own behalf.
It is therefore contended that all the evidence which the learned Judge collected suo motu should not be locked at and the case of the petitioner should be confined to the bare plea which was raised in this case.
If this is so, says Seshadri, the election petition deserves to be dismissed because the case as found was not clear in the plea and was certainly lacking in the proof as required by law.
Since the matter is one fought primarily with regard to pleadings in the case, we shall begin by setting out the pleas which have been advanced by the election petitioner.
The plea consists of several parts.
The election petitioner states that the Swatantra Party and its agents conveyed the voters to and from the polling booths in certain cars hired or procured from M/s Kumarswamy Automobiles and T.S. Narayanan, Authorised Tourist Taxi Operators.
The petitioner goes on to say that the detailed analysis of the use of the cars and particulars of the user are given in a schedule attached to his petition.
That schedule names a large number of cars which were used and at many polling booths in different divisions for the purpose of carrying the voters to the polling booths.
Some of these cars came admittedly from the garage of Messrs. Kumarswamy Automobiles and some others from the other motor garage named by us or were loaned for the day by certain private owners including companies.
The essence of this plea is that cars were procured or hired for the conveyance of the voters.
There is, however, no mention in the plea as to who had hired the vehicles or caused them to be procured and it is this fact which has been made much of by Seshadri in the appeal before.
His contention is that without the particulars being sufficiently full and precise, it was not possible for him to controvert the case set up against him, particularly as the case of the election petitioner was supplemented by the learned Judge by calling at a later stage court witnesses who deposed to the connection between the cars and Seshadri.
We have, therefore, to determine first whether the plea which was raised was sufficient for the purpose of investigation before we go to see whether the plea has received adequate support through evidence.
Seshadri personally argued his appeal on two separate occasions.
On the first occasion he confined himself entirely to the pleas he expounded it and urged in support that the plea in the election petition did not allege anything nor did the evidence in 1023 support establish anything further.
But before the case concluded, Seshadri made a request to us that as he had misunderstood his own position with regard to the appeal, regard being had to certain observations of the Court, he had not argued the case fully on the first occasion and he should be allowed an opportunity to supplement his arguments by urging the points de novo.
Since Seshadri was conducting his case in person and appeared to be under some emotional stress, we felt that the ends of justice would be satisfied if we accorded him a second opportunity and this is how the case was set down again for hearing.
On the second occasion Seshadri supplemented his arguments with numerous citations from the law reports in support of two propositions, namely, that the particulars should be complete before the evidence could be looked into and secondly that amendment of the pleadings through evidence is not permissible.
It may be mentioned here that the evidence in the case discloses that not one, two or three cars were used but as many as 63 cars were employed.
This evidence has been weighed by the learned Judge.
He has gone critically into every aspect of it and come.
to the conclusion that many cars in fact were used.
The learned counsel for Vasantha Pai placed in our hands a tabulated statement of the evidence bearing upon the use of the cars and having looked into the judgment of the learned Judge as also the evidence with the aid of the tabulated statement, we are satisfied and it is sufficient to say for us that we entirely agree with the conclusion of the learned Judge that many cars were, in fact, used for conveyance of voters in this constituency.
The alternative suggestion that on some of the days an election from the Teachers ' Constituency was going on and that since the polling booths were sometimes located for the two constituencies in the same building, it is possible that the cars were used for that election and not this, does not merit any consideration.
The suggestion is extremely vague and the evidence even more tenuous.
It is said that one Varadachari was responsible for the hiring of the cars and that in our opinion does not stand either substantiated or any scrutiny.
We are therefore satisfied with the finding of the learned Judge in the High Court that cars that were employed for conveyance of voters and that they were in fact used in this constituency and none other.
The question then remains as to who was responsible for this? Now the plea on this subject, as we have said, is contained in several parts of the election petition.
One part we have summarised above.
The second part was that the Swatantra Party_ was supporting Seshadri and that the workers of the Swatantra Party were working strenously for his success.
From this it has been reasoned in the High Court that the Swatantra Party was an agent of Seshadri.
Its actions therefore would be his actions L6Sup.
C.I/69 14 1024 if he was a Consenting party.
In this connection it is also stated that Seshadri was being supported by some persons connected with him who helped him by procuring these vehicles for the conveyance of the voters.
In the schedule which is filed with the plaint a large number of cars is mentioned and the schedule shows in one of its columns to which polling booths were the voters carried.
It is too detailed to be reproduced here.
Suffice it to say that it contains names of six divisions and 17 polling booths.
It also mentions over two dozen cars which were so used.
In the body of the election petition, the petitioner further stated as follows: "Besides Tourist Taxis, the petitioner understands the Private Commercial Firms and Cinema Producers placed at the disposal of the first respondent their cars for conveying voters.
The persons who were conveying the voters were members of the Swatantra Party, who were acting as the Agents of the first respondent under the guidance in particular of Mr. H.V. Hande.
The Agents of the first respondent wore a distinctive badge with R.M. Seshadri printed in bold letters attached to a blue ribbon and pinned to their shirts.
They were either escorting the voters or receiving them at the polling stations specified above.
In Booth Nos. 60 to 65, prominent among the persons so escorting was Violin Mahadevan who had a badge pinned to his shirt and who the petitioner understands is a member of the Swatantra Party.
In Saidapet South, the petitioner states, the car MSS 3336 conveying the voters was in charge of an Advocate 's Clerk by name T.K. Vinayagam of No. 16, Karani Garden II Street, Saidapet, Madras 15.
The said Vinayagam was wearing a badge of Mr. Seshadri.
At Raja Annamalaipuram the petitioner learns that a green coloured Station Wagon MSP 5398 was in charge of Mr. Venkataraman, member of the Swatanthra Party and residing at 30, IV Main Road, Raja Annamalaipuram, Madras 28.
The petitioner states that in almost every polling booth, Tourist Taxis and cars engaged by the first respondent were being used by the Swatanthra Party Agents for conveying voters.
" Seshadri contends that in this plea only four names are mentioned, namely, H.V. Hande, Violin Mahadevan, T.K. Vinayagam and Venkatraman.
He starts therefore by analysing whether the connection between these persons and him had been successfully established and further whether they were responsible for 1025 conveying voters to the polling booths in the cars.
He examines critically the evidence of these witnesses before us and also the other evidence bearing upon the subject and contends that the evidence taken as a whole does not establish their connection with him or with the voters or with the cars.
We shall, therefore, begin by considering what was said about these persons by Seshadri.
In regard to Hande, Seshadri 's contention is that no other person had spoken about Hande excepting the petitioner (P.W. 33) and he spoke about him only in one place.
He therefore states that the evidence on this part is extremely insufficient because it depends upon the interested word of the petitioner himself.
He refers us to his deposition contained in pages 419 to 531 of the Paper Book, but he draws our attention in particular to certain passages where only one car was mentioned by him in connection with Hande.
That car was MSR 7065.
The evidence of the election petitioner was that as he was emerging from Doraiswamy Road he found that this car was going past him with a gentleman with a blue upper cloth.
The gentleman looked at him and he found that it was Hande.
According to Seshadri this evidence was not sufficient to show that Hande was conveying voters to the polling booth.
On this part of the case Seshadri is right because the evidence of the complicity of Hande with the hiring or procuring of the cars was not established nor his complicity with regard to the carriage of voters to the polling booths.
With regard to Vinayagam, Seshadri 's argument is that the fact is deposed to by the election petitioner himself who said that he had seen a car with a lady and a gentleman arriving at the polling booth and that a lawyer 's clerk opened the door and received them.
This car bore the number MSS 3336.
Support for this evidence is sought by the election petitioner through the evidence of Laxshaman Hegde (P.W. 15) who said that he had seen an Ambassador car carrying two voters just halting at the polling booth.
Two voters whom he knew from before came down from the car.
A 'short gentleman ' directed them to the polling booth.
Vasantha Pai then asked the witness if the person was known to the witness.
As he did not know the name of the gentleman he could not tell him but Vasantha Pai noted the number of the car.
This person who received the voters at the polling booth was later identified by the witness as Vinayakam.
The way in which he obtained this information has been given by him in his deposition.
He appears to have obtained it from the person concerned.
Whatever it may be, there is nothing incriminating in a worker of the party receiving a voter at the polling booth.
Polling agents cannot canvass within 100 meters but there is nothing to show in the law that they cannot open the door of a car in which a voter has arrived.
The gravamen of the charge, as Seshadri correctly points out was that Vinaya 1026 kam was wearing a badge such as we have described and that of course is a different matter and we are not concerned with it here.
On the whole, therefore, this evidence does not show that the cars were hired by Seshadri.
It only furnishes some link in the circumstantial chain to which we shall later refer and that in our opinion is the only use to which this evidence can be put.
The next person connected with the use of the car is Venkatraman.
Three persons deposed to his connection.
of these one is the election petitioner himself; the others are P.Ws. 23 and 27.
Seshadri argues that we should not believe these witnesses; one because he is himself a party and the other two because they were connected intimately with the prospects of Vasantha Pal.
K.V. Padmanabha Rao (P.W. 23) is said to be the junior of Vasantha Pal and was canvassing for him.
He was standing near the vehicle with a list, presumably of the voters, and at that time several vehicles arrived there.
He stated that he connected Venkataraman with Seshadri because he was moving about in the company of one Sivasankaran (Junior of Seshadri) in the IInd Main Road.
He had also seen him with Sivasankaran going with lists in his hand from house to house.
Later he found out from some of his friends what was the purpose of this visit and was told that they were asking the voters whether they needed any conveyance for the next day 's polling, as they had command over a large number of vehicles.
The latter part of the evidence is hearsay and Seshadri is perfectly right in claiming that it should not be accepted.
The fact remains that the witness did see Venkataraman moving with the clerk of Seshadri and therefore there is room for thinking that they were connected together.
T.L. Ram mohan (P.W. 27), it is said, was assisting Vasantha Pai.
He wrote a letter Ext.
P 109 and his evidence is also described as hearsay.
We need not therefore go by his evidence to reach the conclusion that the cars were hired by Seshadri or some one on his behalf.
We can only use this evidence if there were some other evidence to which it can be read as corroborative, because by itself it does not furnish proof of the hiring of vehicles by Seshadri.
it only shows that the vehicles were in fact used and that the vehicles were bringing voters to the polling booth.
The connection of Violin Mahadevan was deposed to by four witnesses.
V. Murali (P.W. 5) who works in the chamber of two lawyers Rao and Reddy admitted that he.was working for Vasantha Pai.
He also said that he saw Violin Mahadevan wearing the badge and standing near the polling booth.
He stated this to Vasantha Pai and communicated to him his own observation.
He admitted that he did not know Violin Maha .
devan from before but somebody had told him about him.
He could not name the voters who had been brought.
He saw that Violin Mahadevan was wearing the same badge which we have 1027 described and the voters were accosted by persons wearing the same badge and were received at the polling booth.
section Ramamurthy (P.W. 10) saw Venkataraman.
He admitted that he had not seen anybody brought by Venkataraman and he also did not know the names of the voters who were brought.
But the evidence of section Ramamurthy (P.W. 10) is sufficient to show that the voters did in fact come by cars to the polling booth.
Therefore to that extent, his evidence is material in determining whether the alleged corrupt practice was committed or not.
A. Sankaran (P.W. 20) also saw Violin Mahadevan receiving voters at the polling booths.
Seshadri contends that as the plea was limited to the naming of these four persons, it is clear that the plea as made was insufficient to bring home the charge which is now brought to his door, namely, that he had hired or procured these vehicles.
As has been said above, the hiring and procuring of the vehicles is a totally different matter.
These witnesses only speak to what they saw at the polling booths and their evidence is believable that voters were brought to the polling booth.
The question is by whom? The case then goes on to another point and that is: Where did the cars come from? Neither side had examined either Kumarswamy or the owner of the other garage or any other person.
The learned Judge then felt that he should examine some court witnesses and he summoned three, namely, Kumarswamy (C.W. 2), Krishnaswamy (C.W. 3) and one Ganesan (C.W. 1).
He also called for a report from the police as to whom the cars belonged and he perused the evidence of these three witnesses as also the report sent by the police and come to the conclusion that the hiring or procuring was by Seshadri himself.
A great deal of argument is therefore directed by Seshadri to exclude the evidence of these witnesses and the reference to the police to find out to whom the cars belonged.
In this connection Seshadri cites a number of ruling which he says show quite clearly that a plea cannot be allowed to be magnified particularly by evidence not brought by the parties, but at the instance of the Court.
This requires an examination closely.
The first contention of Seshadri is that the Court trying the election petition is limited by the law which is contained in the Representation of the People Act and the Rules made thereunder.
This law, according to him, confers no power upon the Presiding Judge to enter the arena to summon witnesses on his own behalf.
The learned Judge who summoned witnesses passed a very short order while doing so.
He did not refer to any law on the subject but extracted a passage from the trial of Warren Hastings in which it was stated that a Judge 'is not to be a dummy but is to take an active interest in the case.
Seshadri contends therefore that the action of the Judge in summoning the court 1028 witnesses was entirely erroneous and that this evidence should be excluded.
The Vower of a Civil Court to summon court witnesses is contained in O. XVI r. 14 of the Code of Civil Procedure.
Now the Representation of People Act enjoins that all the powers under the Code can be exercised and all the procedure as far as may be applicable to the trial of civil suits may be followed in the trial of election petitions.
It would appear therefore that in the absence of any prohibition contained in the law, the Court has the power to summon a court witness if it thinks that the ends of justice require or that the case before it needs that kind of evidence.
It must be remembered that an election petition is not an action at law or a suit in equity.
It is a special proceeding.
The law even requires that an election petitioner should not be allowed to withdraw an election petition which he has once made and that the election petition may be continued by another person, so long as another person is available.
The policy of election law seems to be that for the establishment of purity of elections, investigation into all allegations of real practices including corrupt practices at elections should be thoroughly made.
Here was a case where a large number of cars were used presumably for the purpose of carrying voters to the booths.
The question is: in the face of this voluminous evidence was it not open to the judge if evidence was available to establish who had procured or hired vehicles, to summon witnesses who could depose to the same ? In our opinion, such a power was properly exercised by the learned judge.
Although we would say that the trial should be at arms length and the Court should not really enter into the dispute as a third party, but it is not to be understood that the Court never has the power to summon a witness or to call for a document which would throw light upon the matter, particularly of corrupt practice which is alleged and is being sought to be proved.
If the Court was satisfied that a corrupt practice had in fact been perpetrated, may be by one side or the other, it was absolutely necessary to find out who was the author of that corrupt practice.
Section 98 of the Act itself allows the Court to name a person who is guilty of corrupt practice after giving him notice and this would be more so in the case of a candidate whose name.
appears to be connected with the corrupt practice, the proof whereof is not before the Court but can be so brought.
In such a ease we think that the court would be acting within its jurisdiction in using O. XVI r. 14 to summon witnesses who can throw light upon the matter.
Having disposed of this preliminarg objection, we are now in a position to consider the evidence which was brought; but before doing so, we must show its relevance to the pleas which had been raised in the case, because much discussion was made 1029 of the law of pleadings in the case.
We have pointed out above that the plea in essence was that cars were used for the purpose of conveying voters contrary to the prohibition contained in the Election Law.
The names of the booths and the divisions in which the booths were situated together with the particulars of the cars and the persons primarily concerned with cars at the polling booths have been mentioned.
It is true that the drivers of the cars or the voters themselves have not been examined.
But it has been sufficiently pleaded and proved that the cars were in fact used.
The connection of Seshadri with the use of the cars has been specifically pleaded.
In our opinion, the rest were matters of evidence which did not require to be pleaded and that plea could always be supported by evidence to show the source from where the cars were obtained, who hired or procured them and who used them for the conveyance of voters.
This is exactly what has happened in this case.
The learned Judge after reaching the conclusion that a large number of cars were used for conveying voters to the polling booths,.
felt impelled further to consider who was responsible for hiring them.
The names of the two garages were already given and there was the allegation that certain companies and cinema producers were also helping Seshadri by the loan of cars.
Since the name of Kumarswamy 's garage was mentioned, it was but natural for the Judge to have summoned the proprietor of the garage.
The proprietor of the garage came and gave the story about the use of the cars by some other candidate but not Seshadri.
lie however brought on record documents to show that the cars were hired on payment from his garage by one Krishnaswamy.
The next step was therefore to summon Krishnaswamy and he was therefore summoned and questioned.
Krishnaswamy admitted that he had hired these cars and paid bills amounting to a few thousand rupees.
It is obvious that these cars were not employed for any other purpose that day except for election work.
It is ridiculous to imagine that they were ordered for a picnic or for a marriage which did not take p1ace.
Therefore the inference was that Krishnaswamy had hired these cars to convey voters to the polling booths.
The question therefore boils down to this, for whom was Krishnaswamy working? Here we have the evidence of various types against Krishnaswamy.
Kumarswamy and Krishnaswamv have been amply proved in the ease to be connected with Seshadri.
Kumarswamv was shown exhibit c 2A. lie stated that it was an order form filled bV R. Krishnaswamy.
He also admitted that he had received payments and that the trip sheets of the cars were maintained for that date.
Those trip sheets are C 7 to C 36.
Now with regard to these trip sheets, it may be stated that in some of them there was mention that the cars were used for election work, but subsequently it was 1030 found that someone had rubbed out that entry.
We are not here to find out who was guilty of attempting to create evidence by rubbing this out.
The fact remains that some of the trip sheets still read clearly that the cars had been used for election work.
exhibit C 6 was the bill which was issued for these cars, and it was issued to Krishnaswamy.
Therefore the cars were engaged at least from Kumarswamy garage for conveying voters and they were hired by Krishnaswamy and he paid for them.
Now Krishnaswamy is connected intimately with Seshadri.
He was employed by two companies in which Seshadri was a Director.
A party was arranged in honour of Seshadri to celebrate his victory.
The arrangement for this was made by Krishnaswamy although the expenses for the party were paid by Seshadri by cheque.
Seshadri contends that his entire accounts were.
examined but it was not proved from those accounts that he had paid any money towards the hire of the cars.
It is not possible for anyone to say how Seshadri, if he was willing to pay for the cars, would have procured the money.
It would have been the worst thing for him to have paid the amount by cheque so that it could enter into the accounts.
Obviously such payments would be made in a way that they could not be traced back to the person actually paying the amount.
The connection, however, of Krishnaswamy with the hiring of the cars and with the celebration of the victory of Seshadri furnishes a very important link in the chain of reasoning.
It is quite clear to us that the Swatantra Party was in favour of Seshadri.
Seshadri relies upon finding which has been given by the Court in which it is stated that the Judge found that the first respondent, the Swatantra party and the persons mentioned therein acted as agents of the first respondent and committed corrupt practices under section 123(5) with which we are now dealing.
The argument was that this finding.
is somewhat obscure because it shows that the first respondent was the agent of the first respondent himself.
It seems to us that the learned Judge in recording this finding gave it unthinkingly taking the words from the plea in the petition.
It is quite clear that the learned Judge reaches the conclusion that the Swatantra party was working actively in support of Seshadri.
It is of course not proved, that he was the adopted candidate of the party nor is it proved that he had appointed any particular person as his agent, but it is quite clear that the Swatantra party was actively supporting him.
Thus there is the presence of the workers of the Swatantra party like Hande, Vinavakam, Violin Mahadevan and Venkatraman on the scene at the polling booths.
It may also be mentioned that in one of the trip sheets, one Kalyanasundaram had signed in token of the cars having been used.
This Kalyanasundaram was the polling agent of Seshadri.
The circumstantial 1031 evidence is now complete.
There is the hiring of the cars from the Kumaraswamy Garage by Krishnaswamy, the payment of money by Krishnaswamy to the garage, Krishnaswamy 's attachment to Seshadri because of his past connection and the further proof that he arranged the party on his behalf after his victory and the trip sheet was signed by Kalyanasundaram the polling agent of Seshadri.
The amount paid was so large that only a candidate would incur that expense, and no supporter.
If there was any doubt as to who hired or procured these cars, it is resolved by the concatenation of circumstances which clearly demonstrate that it could have been only Seshadri and no one else who had hired these vehicles.
We can infer this circumstantially even though direct evidence be not available.
In addition, there is the patent fact that Seshadri did not himself go into the witness box and clear these facts standing out against him although opportunity ' was offered.
It is true that Seshadri complained before us that the plea was vague, that it had been magnified by the evidence brought in this manner and the Court allowed the election petitioner to take advantage of the evidence so brought, but we have already held that the evidence was legitimately brought and that it could be led in the case.
As to the plea, we have already shown that it was sufficiently cogent to establish the connection between Seshadri and the hiring and procuring of the cars.
The missing links were supplied by that evidence by showing the connection of the only person who had hired the cars and paid several thousand rupees for their hire.
If that person is intimately connected with Seshadri, the conclusion is inescapable that it was Seshadri for whose benefit the cars were hired or procured.
In our opinion, the circumstantial chain of evidence is sufficient to show the connection between him and the use of the cars for the conveyance of voters.
As to the rulings which were cited before us, it is sufficient to say that each case is decided on its own facts, and circumstances.
It is true that better particulars can only be given by the party, but that is only where better particulars are required.
It was not necessary for Vasanta Pai to have pleaded his evidence in this behalf.
He made a very full plea by giving the numbers of the cars, by naming the polling booths at which voters were brought and by stating quite categorically that it was Seshadri who had procured these cars for the conveyance of voters.
Rest was matter of evidence and the facts had to be established by evidence.
It may be that without the evidence of Kumaraswamy and Krishnaswamy the case might have taken a different turn but we have already pointed out that the learned Judge very correctly brought these two persons intimately connected with the cars into the Case before him, and to give their version.
Their version is partly 1032 true and partly false and the false evidence was to exclude Seshadri from the charge.
In our opinion, this also demonstrates the connection between these persons and Seshadri which had been established in other ways through their own mouths.
We accordingly hold that this corrupt practice was brought home.
It remains to consider the argument of Mr. Gupte whether Vasanta Pai could be declared elected.
This will depend on our reaching the conclusion that but for the fact that voters were brought through this corrupt practice to the polling booths, the result of the election had been materially affected.
In a 'single transferable vote, it is very difficult to say how the voting would have gone, because if all the votes which Seshadri had got, had gone to one of the other candidate who got eliminated at the earlier counts, those candidates would have won.
We cannot order a recount because those voters were not free from complicity.
It would be speculating to decide how many of the voters were brought to the polling booths in the cars.
We think that we are not in a position to declare Vasanta Pai as elected, because that would be merely a guess or surmise as to the nature of the voting which would have taken place if this corrupt practice had not been perpetrated.
In the result therefore, we set aside the direction that Vasanta Pai is elected to the constituency.
There will inevitably have to be a fresh election in this constituency.
In so far as Seshadri is concerned, we think that he was properly named as guilty of corrupt practice although that order was incorporated by the learned Judge through a review.
It was his duty to have named persons who had been guilty of corrupt practice and he made this up later.
There is no need for any specific power for review since the power to name any person guilty of corrupt practice is already contained in the Act.
Whether it comes in the original judgment or by a supplementary or complementary order, is not much to the purpose; that order was correctly made.
In the result, the appeal fails and it will be dismissed with costs.
R.K.P.S. Appeal dismissed.

summary:
The appellant was elected to the Madras Legislative Council from the Madras District Graduates Constituency.
His election was challenged by the Respondent, his nearest rival candidate by an election petition alleging, mainly, that a large number of cars had been employed for the conveyance of voters to the polling booths in violation of section 123(5) of the Representation of the People Act, 1951.
The High Court held that the corrupt practice was established and set aside the appellant 's election.
It also declared the respondent elected in his place.
The original order passed by the High Court did not :name the appellant as guilty of corrupt practice but the Court, by a subsequent order reviewing its previous order, gave a declaration to that effect.
In the appeal to this Court, it was contended by the appellant that the plea in the petition regarding violation of section 123(5) was vague and not sufficiently defined so as to give him notice of the charge he had to meet, and furthermore, that the learned Judge who tried the case improved both the pleading on the subject and the evidence led by the election petitioner by calling certain witnesses and looking into documents which he had no power to do.
It was therefore contended that all the evidence which the learned Judge collected suo motu should not be looked at and if the case of the petitioner was confined to the bare plea raised, the petition would deserve to be dismissed because it was not clear in the plea and was lacking in proof.
HELD: dismissing the appeal: On the facts, the High Court had rightly found that many cars were employed for the conveyance of voters in the constituency.
The circumstantial chain of evidence was sufficient to show the connection between the appellant and the use of the cars for the conveyance of voters.
The corrupt practice under section 123(5) was therefore brought home.
A B] (i) The plea in the petition in essence was that cars were used for the purpose of conveying voters contrary to the prohibition contained in the Election Law.
The names of the booths and the divisions in which the booths were situated together with the particulars of the cars and the persons primarily concerned with cars at the polling booths had been mentioned.
The connection of the appellant with the use of the cars had been specifically pleaded.
Sufficient particulars of the allegation had therefore been given and the rest were matters of evidence which did not require to be pleaded.
(ii) The power of a Civil Court to summon court witnesses is contained in O. XVI r. 14 of the Co& of Civil Procedure.
The Representation of People Act enjoins that all the powers under the Code can be exercised and all the procedure as far as may be ,applicable to the trial 1020 of civil suits may be followed in the trial of election petitions.
The court trying an election petition therefore has the power to summon a Court witness if it thinks that the ends of justice require or that the case before it needs that kind of evidence.
The policy of election law seem to be that for the establishment of purity of elections, investigation into to be that for the nasal factices including corrupt practices at elections all allegations of malpractices include corrupt practices at elections should be thoroughly made.
In the present case a large number of cars were obviously used presumably for the purpose of carrying voters to the booths.
In the face of this voluminous evidence it was open to the judge, if evidence was available to establish who had procured or hired judge, summon witnesses who could depose to the same.
Such a vehicles, to exercised by the learned judge .
[1028 B F] (iii) In the present case it was not possible to reach the conclusion the voters were brought to the polling booths in violation of that 23(5), the result de the election had been materially affected.
In a single transferable vote, it is very difficult to say how the voting would have gone, because if all the votes which the appellant had got, had gone to one of the other candidates who were eliminated at the earlier counts, those candidates could have won.
The declaration of the respondent 's election would be merely a guess or surmise as to the nature of the voting which would have taken place if the corrupt practice had not been perpetrated and the High Court 's direction declaring him elected must therefore be set aside.
[1032 B D] (iv) The appellant was properly named as guilty of corrupt practice although the order was incorporated by the learned Judge through a review.
It was his duty to have named persons who had been guilty of corrupt practice and he made this up later.
There is no need 'for any specific power for review since the power to name any person guilty of corrupt Practice is already contained in the Act.
Whether it comes in the original judgment or by a supplementary or complementary order, is not much to the purpose that order was correctly made.
[1032 E]