judgement:
minal Appeal No. 185 of 1971.
Appeal by special leave from the judgment and order dated June 19, 1971 of the Madras High Court in Application Nos. 1171 and 1172 of 1971.
section N. Prasad, for the appellant.
A. V. Rangam, for the respondent.
The Judgment of the Court was delivered by Shelat, J.
This appeal, by special leave, is directed against the order of the High Court of Madras, directing a sum of Rs. 500, deposited in the High Court as security for the appellant 's appearance before it in certain contempt of court proceedings, to be adjusted against the fine imposed upon him in those proceedings.
It appears that the contempt of court proceedings, being No. 3 of 1962, were taken against the appellant in the High Court in respect of a letter written and addressed by the appellant to the then Chief Justice of the High Court and which contained certain remarks in regard to the dismissal of the appellant 's revision application by a single Judge of the High Court.
Thus, the contempt with which the plaintiff was charged in those proceedings was contempt of the High Court, and not the City Civil Court, Madras, in which the appellant had filed the suit from out of which the said revision application arose.
In those proceedings, the High Court, by its judgment and order, dated February 25, 1964, held the appellant guilty of contempt of court and sentenced him to six months ' single imprisonment and fine.
The appellant served out the sentence of imprisonment, but failed to pay the fine.
419 It appears that the said amount of Rs. 500, deposited, as aforesaid, in the said contempt proceedings, remained unattached till 1971.
In 1971, two applications were filed in the High Court, one by the appellant for refund of the said amount and the other on behalf of the State for adjustment of the said amount towards the fine remaining unpaid.
By an order, dated June 29, 1971, the High Court dismissed the appellant 's application for refund and allowed the State 's application for payment of the said sum towards satisfaction of the said unpaid fine.
As against the said order, counsel for the appellant relied on sec.
70 of the Penal Code and urged that six years having elapsed since the passing of the order imposing fine upon the appellant, the State 's application was time barred and the High Court could not pass the impugned order, the effect of which was to collect the said fine from out of the said deposit.
If sec.
70 were to apply to the said contempt of court proceedings, there is no doubt that the State 's application would be time barred as that section in terms provides that such fine can be levied within six years after the passing of the order of conviction and sentence.
But sec.
5 of the Penal Code provides, inter alia, that its provisions are not to affect the provisions of any special or local law.
Under sec.
41 of the Penal Code, a special law is one applicable to a particular subject.
Therefore, if the law as to contempt of court, as administered by the High Court of Madras, a chartered High Court, were to be regarded as special law, sec.
70 of the Penal Code, obviously, cannot apply,, and since such a special law does not prescribe any period of limitation for collecting and satisfying a fine imposed thereunder, no question of limitation would arise.
Counsel, however, relied on sec.
25 of the which provides that secs.
63 to 70 of the Penal Code and the provisions of the Code of Criminal Procedure in relation to the issue and execution of warrants for the levy of fines shall apply to all fines imposed under "any Act, Regulation, rule or bye law" unless such Act, Regulation, rule or bye law contains an express provision to the contrary.
The argument was that the order of sentence which imposed upon the appellant the fine was and must be regarded as an order passed under the Contempt of Courts Act, XXXII of 1952, and consequently, sec.
70 of the Penal Code was applicable.
The question is, does the power of the High Court of Madras to punish contempt of itself arise under the , so that under see.
25 of the , secs.
63 to 70 of the Penal Code and the relevant provisions of the Code of Criminal Procedure would apply? The answer to such a question is furnished by article 215 of the Constitution and the provisions of the 420 themselves.
article 215 declares that every High Court shall be a court of record and shall have all powers of such a court including the power to punish for contempt of itself.
Whether article 215 declares the power of the High Court already existing in it by reason of its being a court of record, or whether the Article confers the power as inherent in a court of record, the jurisdiction is a special one, not arising or derived from the , and therefore, not within the purview of either the Penal Code or the Code of Criminal Procedure.
Such a position is also clear from the provisions of the .
3 of that Act provides that every High Court shall have and exercise the same jurisdiction, powers and authority in accordance with the same procedure and practice in respect of contempt of courts subordinate to it as it has and exercises in respect of contempts of itself.
The only limitation to the power is, as provided by sub sec.
(2), that it shall not take cognizance of a contempt committed in respect of a court subordinate to it where such contempt is an offence punishable under the Penal Code.
As explained in Sukhdev Singh Sodhi vs The Chief Justice and Judges of the Pepsu High Court,(1) sec.
3 of the Act is similar to sec.
2 of the 1926 Act, and "far from conferring a new jurisdiction, assumes, as did the Old Act, the existence of a right to punish for contempt in every High Court and further assumes the existence of a special practice and procedure, for it says that every High Court shall exercise the same jurisdiction, powers and authority "in accordance with the same procedure and practice.
" In any case, so far as contempt of the High Court itself is concerned, as distinguished from that of a court subordinate to it, the Constitution vests these rights in every High Court, and so no Act of a legislature could take away that jurisdiction and confer it afresh by virtue of its own authority.
No doubt, sec.
5 of the Act states that a High Court shall have jurisdiction to inquire into and try a contempt of itself or of a court subordinate to it whether the alleged contempt is committed within or outside the local limits of its jurisdiction and whether the contemnor is within or outside such limits.
The effect of sec.
5 is only to widen the scope of the existing jurisdiction of a special kind and not conferring a new jurisdiction.
It is true that under sec.
4 of the Act the maximum sentence and fine which can be imposed is respectively simple imprisonment for six months and a fine of Rs. 2,000, or both.
But that again is a restriction on an existing jurisdiction and not conferment of a new jurisdiction.
That being the position, sec.
25 in the cannot apply.
The result is that sec.
70 of the Penal Code is no impediment by way of limitation in the way of the recovery of the fine.
(1) ; , at 463.
421 It is true that the deposit was made for a particular purpose, that is, to secure the presence of the appellant at the time of the hearing of the said contempt proceedings.
But the High Court, as a court of record, being clothed with a special jurisdiction, has also all incidental and necessary powers to effectuate that jurisdiction.
Consequently, it had the power to order satisfaction of fine imposed by it from out of an available fund deposited by or on behalf of or for the benefit of the appellant.
In our view, the contentions raised on behalf of the appellant cannot, for the reasons aforesaid, be sustained.
The appeal fails and is dismissed.
There will be no order as to costs.
S.C. Appeal dismissed.

summary:
The appeal is directed against the order of the High Court of Madras directing a sum of Rs. 500/ deposited in the High Court as security for the appellants appearance before it in certain contempt of Court proceedings, to be adjusted against the fine imposed upon him in those proceedings.
The contempt of Court proceedings (No. 3 of 1962) were taken against the appellant in the High Court in respect of a letter written and addressed by the appellant to the then Chief Justice of the High Court and which contained certain remarks in regard to the dismissal of the appellant 's revision application by a single judge of the High Court.
The contempt with which the plaintiff was charged in those proceedings was contempt of the High Court and not the City Civil Court, in which the appellant had filed the suit 'from which, the said revision application arose.
In those proceedings, the High Court by its judgment, held the appellant guilty of contempt of Court and sentenced him to 6 months simple imprisonment and fine.
The appellant served out the sentence of imprisonment but failed to pay the fine.
The said amount of Rs. 500, deposited in the said contempt proceedings remained unattached till 1971.
when two applications were filed in the High Court one by the appellant for refund and the other by the State for adjustment of the said amount towards the fine remaining unpaid and the High Court allowed the State 's application for payment of the said sum towards satisfaction of the said unpaid fine.
Counsel for the appellant relied on section 70 of the Penal Code and urged that six years having elapsed since the passing of the order imposing fine upon the appellant, the State application was time barred and the High Court could not pass the impugned order.
Further, counsel relied on section 25 of the which provides that Sections 63 to 70 of the Penal Code and the provisions of the Criminal Procedure Code in relation to the issue and execution of warrants for the levy of fines shall apply to all fines imposed under any Act, Regulation etc., and since a fine which was imposed upon the appellant, was an order passed under the Contempt of Court Act 1952, Section 70 of the Penal Code was applicable.
Dismissing the appeal, HELD : (i) See.
5 of the Penal Code provides, inter alia, that its provisions are not to affect the provisions of any special or local law and under article 215 of the Constitution, every High Court being a Court of Record, have all the powers of such a Court including the power to punish fore contempt of itself.
The jurisdiction a special one.
not arising or derived from the , and therefore, not within the purview of either the Penal Code or the Code of Criminal Procedure.
The law as to contempt of Court, as administered by the 418 Madras High Court, in the present case, is a special law and therefore, section 70 of the Penal Code does not apply to the facts and circumstances of the case.
Further since such a special law does not prescribe any period of limitation for collecting and satisfying a fine imposed thereunder no question of limitation would arise.
[420 A] (ii) The power of the High Court to punish for contempt of itself arises not under any Act, such as Contempt of Courts" Act, but the Constitution itself vests these rights on every High Court, and no Act of a Legislature could take away that jurisdiction and confer it afresh by virtue of its own authority and since the sentence of fine and imprisonment passed against the appellant was not imposed under any act or statute,Section 25 of the has no application in the present case.
[420 E F] Sukhdev SinghSondhi v The Chief Justice and Judges of the Pepsu High Court [1954]S.C.R. 454 referred to.


judgement:
iminal Appeal No. 93 of 1971.
L. M. Singhvi, P. N. Tewari, O. C. Mathur, J. B. Dadacharji and Ravinder Narain, for the appellant.
Niren De, Attorney General for India, Jagadish Swarup, Solicitor General of India, R. N. Sachthey and R. L. Mehta, for respondents Nos. 1 & 2.
Advocate General for the State of Jammu and Kashmir and R. N. Sachthey, for respondent No. 3.
The Judgment of the Court was delivered by Sikri, C.J.
This appeal, by special leave, is directed ,against the judgment of the Jammu & Kashmir High Court holding that the , (25 of 1946) was validly extended to the State of Jammu and Kashmir by the Jammu and Kashmir (Extension of Laws) Act, 1956 'here in after referred to as the Extension Act.
The High Court decided this question on a reference made by the Special Magistrate, under section 432 of the Code of Criminal Procedure, before whom the challan had been filed under the Ranbir Penal Code on November 29, 1967.
The only question involved in this appeal before us is as to the validity of the aforesaid extension.
In order to appreciate the contentions of the learned counsel in this respect, it is necessary to give an account of the constitutional provisions applicable to the State of Jammu and Kashmir.
On January 26, 1950 the Constitution of India came into force.
In exercise of the powers conferred by cl.(1) of article 370 of the Constitution of India, the President, in consultation with the Government of the State of Jammu & Kashmir, made the Constitution (Application to Jammu and Kashmir) Order, 1950.
This order was superseded by another order in 1954.
By that order, ,one of the entries on which Parliament could make laws was entry 413 80 of List I of the Seventh Schedule of the Constitution.
This entry reads as follows : "Extension of the powers and jurisdiction of members of a police force belonging to any State to any area outside that State, but not so as to enable the police of one State to exercise powers and jurisdiction in any area outside that State without the consent of the Government of the State in which such area is situated; extension of the powers and jurisdiction of members of a police force belonging to any State to railway areas out side the State.
" By the Extension Act, which received the assent of the President on September 25, 1956, the , was extended to the State of Jammu and Kashmir in the following manner.
Section 1(2) of the Extension Act provided that "it shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint.
" Section 2 provided as follows : "(1) The Acts and Ordinance mentioned in the Schedule and all rules, orders and regulations made thereunder are hereby extended to and shall be in force in, the State of Jammu and Kashmir.
(2) With effect from the commencement of this Act, the Acts and Ordinance mentioned in the Schedule shall be amended as specified therein.
" The Schedule which contained the Delhi Special Police Esta blishment Act, 1946, amended it by omitting the words "except the State of Jammu and Kashmir" from section 1.
A notification was issued appointing November 1, 1956, as the date for the coming into force of the Extension Act in the State of Jammu and Kashmir.
The effect of the notification and Sec.
2 mentioned above was that the , came into force in the State of Jammu and Kashmir from November 1, 1956.
The Constitution (Seventh Amendment) Act, 1956 also came into force on November 1, 1956.
The State of Delhi, which was a part 'C ' State immediately before the Seventh Amendment became a Union Territory.
A new article, article 372A, was also inserted in the Constitution enabling the President to adapt laws in force immediately before the commencement of the Constitution (Seventh Amendment) Act, 1956.
This article has no application to the State of Jammu and Kashmir and, therefore, any adaptations made by the President 414 in exercise of the powers under article 372A can have no application to the State of Jammu and Kashmir.
In view of these constitutional changes, it is contended on behalf of the appellant, that under entry 80 Parliament could only extend the powers and jurisdiction of members of the Police Force belonging to any State, and as Delhi became a Union Territory and ceased to be a State on November 1, 1956, Parliament had no jurisdiction to extend the to the State of Jammu and Kashmir.
It seems to us that the impugned Act was validly extended and our reasons for coming to this conclusion are as follows.
When the Extension Act was passed, Parliament had the competence to extend the impugned Act to the State of Jammu and Kashmir because the Delhi Special Police Establishment was a police force belonging to a Part 'C ' State.
The contention of the learned counsel that because Parliament could not extend the powers and jurisdiction of members of the Delhi Special Police Force after November 1, 1956, assuming it to be correct, does not invalidate the powers exercised earlier.
When the Extension Act was passed there is no doubt that the Parliament had the power.
The fact that the Parliament ceased to have power, as from Nov ember 1, 1956, does not make any difference. ' This Court had occasion to deal with a similar question in State of Assam vs Ka Brhyien Kurkalang.(1) In that case, para 19(b) of Schedule 6, Constitution of India, authorized the Governor to make regulations for the peace and good government of a district.
This power was vested in the Governor tin the setting up of a District Council for an autonomous district.
It was contended that because a District Council had been set up, the Governor could not exercise the power under the Regulation and apply laws.
The High Court had accepted the contention but this Court reversed the judgment of the High Court, and after referring to J. K. Gas Plant Manufacturing Co. Ltd. vs King Emperor; (2) Ram Kirpal vs State of Bihar;(3) and Cajee vs U. Jormanik Siem,(4) held that although the power of the Governor to legislate ended when the District Council was constituted, the power conferred under the regulation on the Governor to bring into force the laws set out in the Schedule continued and would continue so long as the regulation remained on the statute book.
The same principle applies here.
The Central Government could validly issue a notification under sub section
(2) of Sec. 1 appointing the date from which the Act would come into force, and as soon as this notification was made, by virtue of section 2, the (1) (2) (3) ; (4) ; 415 impugned Act came into force in the State.
The Constitution (Seventh Amendment) Act did not destroy the efficacy of sub section (2) of section 1.
The learned counsel contended that this principle conflicts with the general principle that executive power corresponds to legislative power and it could not have been intended that the extended law should operate when there was no corresponding legislative power.
In this connection he referred to article 73.
The general principle is subject to exceptions.
Article 73 itself opens with the words "subject to the provisions of this Constitution.
" This is one of the exceptions envisaged by the Constitution.
Other such exceptions are in article 277 and article 372.
Although legislative power may not exist to legislate on the subject of existing laws executive power would be exercised under the laws saved by article 277 and article 372.
No authority has been cited in support of the contention that executive power to execute a valid law ceases to exist if power to make that law has been transferred to another authority or ceases to exist.
It was next contended that the impugned Act was repugnant to and inconsistent with the Jammu and Kashmir Code of Criminal Procedure and Jammu and Kashmir Police Act, which were already in existence before the Delhi Special Police Act, 1946 came into force.
But in so far as the impugned legislation is a law with respect to entry 80, even if there is repugnancy it must override any laws repugnant thereto in Jammu and.
Kashmir.
article 246, as applicable to Jammu and Kashmir, reads thus "246(1) Notwithstanding anything in clause (2), Parliament has the exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule (in this Constitution referred to as the "Union List"); (2) Parliament, and, subject to clause (1), the Legislative of any State also, have power to make laws with respect to any of the matters enumerated in List III in the Seventh Schedule (in this Constitution referred to as the "Concurrent List") When the impugned Act was extended Parliament had no power to make laws with respect to any items in the Concurrent List, but the impugned law is fully covered by entry 80 and there is no need to rely on the Concurrent list.
Therefore, article 254 can have no application to the present case.
It was also contended that the impugned Act could not have been: validly extended by a notification dated October 10, 1956, 416 issued under the Extension Act which itself came into force only from November 1, 1956.
There is nothing in sub s.(2) of section 1 which makes it obligatory that the notification should issue simultaneously with the date of the coming into force of the Act.
On the contrary, notification must ordinarily issue earlier than the date of the coming into force of the law.
It seems to us clear that the notification could have been issued any time after the President had given his assent, and as soon as the notification was issued section 2 came into effect and all the Acts and Ordinance mentioned in the Schedule, stood automatically extended and came into force.
The learned counsel did not press the point regarding article 14 of the Constitution.
In the result the appeal fails and is dismissed.
V.P.S. Appeal dismissed.

dataset_name: IN-Abs

summary:
By the Constitution (Application to Jammu & Kashmir) Order, 1954, one of the entries on which Parliament could make laws was Entry 80 of List I of the Seventh Schedule, dealing With 'Extension of the powers and jurisdiction of members of a police force belonging to any State to any area outside that State '.
The , (Extension Act) received the President 's assent on September 25, 1956.
Section 1(2) provides that it shall come into force on such date as the Central Government may, by notification 'in the Official Gazette appoint.
By a notification dated October 10, 1956, November 1, 1956 was appointed as the date for the coming into force of the Extension Act in the State of Jammu and Kashmir.
The effect of the notification and section 2 of the Act was that the , (the impugned Act) which was one of the Acts mentioned in the Schedule to the Extension Act, came into force in the State from November 1, 1956.
On the same day the Constitution (Seventh Amendment) Act, 1956, came into force and Delhi ceased to be a part C State and became Union Territory.
On the question whether the impugned Act was not validly extended to the State of Jammu and Kashmir, because, Delhi ceased to be a Part C State on November 1, 1956, HELD : (1) When the Extension Act was passed, Parliament had the competence to extend the impugned Art to the State of Jammu and Kashmir, because, the Delhi Special Police establishment was a police force belonging to a Part C State.
Assuming Parliament ceased to have the power as from November 1, 1956, the Central Government could validly issue the notification under section 1(2) appointing the date from which the Extension Act would come into force, and as soon as this was done, by virtue of section 2, the impugned Act came into force in the State.
[414 B E] State of Assam vs Brhvian Kurkalang, A.I.R. 1972 S.C. 223, followed.
(2) The general principle that the executive power corresponds to the legislative power, in article 73, of the Constitution is subject to exceptions.
The executive power to execute a valid law does not crease if power to make that law has ceased to exist.
[415 B D] (3) In so far as the impugned legislation is a law with respect to Entry 80, even if there was repugnancy it must override any laws repugnant thereto in Jammu and Kashmir.
[415 D E] 412 (4) There is nothing in section 1(2) of the Extension Act which makes it obligatory that the notification should issue simultaneously with the ,date of the coming into force of the Act.
On the contrary, the notification must ordinarily issue earlier than the date of the coming into force of the law.
The notification could have been issued any time after the President had given his assent to the Act, and as soon as the notification was issued, section 2 came into effect and all the Acts and Ordinances mentioned in the Schedule stood automatically extended and came into force in the State [416 A C]


judgement:
minal Appeal No. 105 of 1969.
Appeal by special leave from the judgment and order dated March 27, 1969 of the Bombay High Court in Criminal Appeals Nos. 53 and 45 of 1968.
V.S. Kotwal, A. G. Ratnaparkhi and Rajiv Shah, for the appellant.
R. M. Mehta and B. D. Sharma, for the respondent.
The Judgment of the Court was delivered by Khanna, J.
This is an appeal by special leave by Khandu Sonu Dhobi and Bhikanrao Rambhau Khairnar against the judgment of the Bombay High Court affirming on appeal the conviction of the appellants under section 218 read with section 34, section 477A read with section 34 and section 409 read with section 34 of Indian Penal Code as well as under section 5 (2) read with section 5 ( 1 ) (d) of the Prevention of Corruption Act.
Sentence of rigorous imprisonment for a period of one year and a fine of Rs. 200 or in default further rigorous imprisonment for a period of two months has been awarded on each count to, the appellants.
The substantive sentences have ben ordered to run concurrently.
Dhobi appellant No. 1 was an agricultural assistant and was working under Khairnar appellant No. 2 who was agricultural 512 supervisor in the soil conservation section of the Government of Maharashtra.
Dhobi was incharge of the work relating to a Bundh in block No. 13 of village Asane in Taluka Mandurbar.
The above block comprises agricultural lands bearing survey Nos. 8, 17, 18, 19 and 32 measuring 90 acres.
The Bundhs were being constructed since the year 1962.
Rectification work in respect of those Bundhs at a cost of Rs. 369.07 had to be got done by Dhobi appellant under the supervision of Khaimar appellant.
The Government sanctioned an amount of Rs. 4779 in connection with the construction of the Bundhs.
An advance amount of Rs. 5000 was received by Khaimar accused on March 2, 1966 in that connection.
Work of the value, of Rs. 4400 was done but that relating to rectification work was not done.
According to the rules of the soil conservation section, the Government spent the money in the first instance and after the report of the completion of work was received, the expenses were recovered from the landowners for whose benefit the work was done.
On March 11, 1966 Khaimar made entries in measurement book exhibit 27 showing that he had checked 28 payments and certified the, same.
Khaimar accused also stated in the entry that he had passed the measurements and paid Rs. 369.07.
Paysheets exhibit 64 were prepared by Dhobi accused and he obtained the thumb impressions and signatures of the laborers on the paysheets.
Khaimar made his initials below the thumb impressions in the paysheets.
On the last page of the paysheets, Khaimar signed a certificate according to which he had paid Rs. 369.07 to PW 10 Jagan Trinibak who used to do the labour work.
Final bill exhibit 28 was also prepared on that day by the accused and the signature of Jagan Trimbak was obtained on the same.
The bill was got signed from PW 7 Ziparu Tukaram and another person as attesting witnesses.
The bill was signed thereafter by Khaimar.
Debit entry exhibit 32 of Rs. 369.07 was made by Khaimar accused in the cash book.
He also prepared work abstract exhibit 29 on April 16, 1966 and sent it to the sub divisional soil conservation officer Nandurbar showing an expenditure of Rs. 369 07.
The case of the prosecution was that the measurement book exhibit 27, paysheets exhibit 64, final bill exhibit 28 and cash book entry exhibit 32 were false documents and were fabricated by the accused without doing any reification work on the Bundh.
The accused thus committed criminal breach of trust in respect of the amount of Rs. 369.07 in furtherance of their common intention to misappropriate government property.
According further to the prosecution case, the landowners in block No. 13 came to know of the, above, acts of the accused and they complained about it to Sarpanch Tanku Bhagwan (PW 12).
Tanku sent a telegram on April 12, 1966 to the superintending agricultural officer, Bombay division, Nasik in this connection.
A copy of the telegram was 513 thereafter sent by the superintending agricultural officer to divisional soil conservation officer D.S.D. Ghate (PW 1) for necessary action as well as for enquiry and report.
Chate PW went to village Asane on May 2, 1966 and inspected block No. 13.
He found that entries had been made about the payment of Rs. 369.07 in the measurement book and cash book even though no rectification work had been done.
Chate submitted his report on May 6, 1966 for proceeding departmentally against the accused.
On receipt of the above report, the superintending agricultural officer directed P. R. Inamdar (PW 1 1 ), deputy director of agricultural engineering, to go to Asane village and submit his report after personally verifying the facts.
Inamdar went with Ghate to block No. 13 in Asane village on May 11, 1966.
Both Inamdar and Ghate found that no rectification work had been done.
They did not find even a single pit in the lands in that block although, according to measurement book, 83 pits had been recently dug.
Inamdar and Ghate also met the Sarpanch and other landowners of Asane village.
Report dated May 18, 1966 was thereafter submitted by Inamdar affirming those facts.
Sarpanch Tanku sent complaint exhibit 84, in the meanwhile, on April 30, 1966 to the director of anti corruption branch Maharashtra State stating that the accused had prepared false bill for Rs. 369.07 without doing any work and that they had misappropriated that amount.
It was also stated that attempts were being made to shield the accused.
The director of anti corruption sent a copy of that application to Sub Inspector K. G. Patil (PW 13) who was then attached to Dhulia officse of the anticorruption branch.
Sub Inspector Patil made local enquiry and took into possession the measurement book, paysheets and cash book.
The director of anti corruption branch directed Patil to register a case and investigate into the, matter.
Patil went to Nasik and recorded statement exhibit 79 of Inamdar PW on November 7, 1966.
The statement was then sent to Nandurbar Taluka police station.
A case was registered on the basis of that statement at the police station on November 8, 1966.
On November 12, 1966 sub Inspector Patil applied for permission under section 5A of the Prevention of Corruption Act of judicial magistrate 1st class to investigate the offence.
The permission was granted by the judicial magistrate 1st class Nandurbar on the same day.
Patil thereafter recorded statements of a number of persons.
Patil was subsequently transferred and the case was investigated by his successors Mahamuni and Kulkarni who also obtained the requisite permission.
Sanction exhibit 97 for the prosecution of the two accused was granted under section 6 of the Prevention of Corruption Act by the superintending agricultural officer Bombay division, Nasik on May 18, 1967.
514 The two accused in their statements admitted that the work of the value of Rs. 369.07 wasnot done till March 11, 1966 although it was so stated in the various documents by them.
The accused also admitted that no amounts were paid to any of the labourers mentioned in the paysheets although signatures and thumb impressions of the labourers had been obtained on the paysheets on March 11, 1966.
According to the accused, they had prepared the various documents in accordance with the instructions of Ghate PW who was insisting in March 1966, and even earlier, that a completion report relating to block No. 13 be sent as the entire amount spent on that block since 1962 could not be recovered for want of a. completion report.
Khaimar accused added that rectification work had been done between May 13, 1966 and May 16, 1966 and the amount of Rs. 369.07 was thereafter disbursed on May 16, 1966.
The learned special judge held that the amount of Rs. 369.07 had not been paid by the two accused to the labourers.
No work, it was found, had been done and the different documents prepared by the accused in this connection were false even on their own admissions.
The explanation furnished by the accused that they prepared false documents at the instance of Ghate and got work done thereafter was not accepted.
Objection was raised on behalf of the accused that the investigation of the case was illegal and that prosecution was barred by time under the pro visions of section 23 of the Land Improvement Schemes Act, 1942.
These objections were repelled.
The accused were accordingly convicted and sentenced as above.
On appeal the High Court affirmed the, findings of the learned special judge.
We have heard Mr. Kotwal on behalf of the, appellants and are of the opinion that there is no merit in the appeal.
It has not been disrupted before us that the accused made various entries and prepared documents on March 11, 1966 about their having got the rectification work done as well as about the payment of Rs. 369.07 on that account.
It has also not been disputed before us that the amount of Rs. 369 07 was not paid to any one by the accused in March or April 1966.
According to Ghate (PW 1) and Inamdar (PW 11), no work relating to the rectification of the Bundh was found to have been done till May 11, 1966 when they visited the site in question.
Inamdar 's evidence also shows that according to the measurement book prepared by the accused, 83 pits had been recently dug although the witness could not find a single pit on the spot.
In view of the above, we find no cogent ground to disagree with the trial court and the High Court that the accused had prepared false documents and had also committed criminal breach of trust in respect 515 of the amount of Rs. 369.07.
We also agree with the trial court and the High Court that the accused were in the discharge of their duties guilty of criminal misconduct as defined in section 5 of the Prevention of Corruption Act.
Mr. Kotwal has argued that the accused completed the recti fication work after May 11, 1966,.
There is, however, no direct evidence as may show that the, rectification work was completed ' after May 11, 1966.
Even if it may be assumed that the accused completed the rectification work in May 1966, that fact, in our opinion, would not absolve the accused of their criminal liability.
The charge, against the accused relates to preparation of false documents because even though no work had been done till March 11, 1966 and no amount had been disbursed, they prepared docu ments showing the doing of that work and the payment of that amount.
It is no answer to, that charge that after the matter had been reported to the higher authorities, the accused in the month of May 1966 got the rectification work done.
It is also no answer to a charge of criminal misappropriation that the money was subsequently, after the matter had been reported to the high authorities, disbursed for the purpose for which it had been entrusted.
According to explanation 1 to section 403 Indian Penal Code, a dishonest misappropriation for a time only is " misappropriation " within the meaning of that section.
Mr. Kotwal has also submitted that the accused expressed willingness to complete the work after the matter had been reported to the higher authorities.
This submission, 'even if accepted, would not exonerate the accused because the willingness after the matter had been reported to the higher authorities could not efface or undo the offence earlier committed by the accused.
Argument has then been advanced on behalf of the appellants that Sub Inspector Patil did not make investigation in the case in accordance with law.
It is urged that permission to make investigation was granted to Sub Inspector Patil on November 12, 1966 and, as such, he was not authorized to make before that date the enquiry which led to the registration of the case as that enquiry partook of the character of investigation.
Nothing has been brought to our notice as to how an enquiry before the registration of a case can be held to be investigation.
The matter, however, need not be dilated upon and it is not necessary to express any final opinion in the matter because we find that there is no material on the record as may show that the accused were prejudiced because of the alleged non compliance with the provisions of section 5A of the Prevention of Corruption Act.
It is well established that where cxognizance of a case has, in fact, been taken by the court on a police report following investigation 516 conducted in breach of provisions of section 5A of the Prevention of Corruption Act, the result of the trial cannot be set aside unless the illegality in the investigation can be shown to have brought about a miscarriage of justice.
The underlying reason for the above dictum is that an illegality committed in the course of investigation does not affect the competence and jurisdiction of the court to try the accused.
Where, therefore, the trial of the case has proceeded to termination, the invalidity of the proceeding investigation would not vitiate the conviction of the accused as a result of the trial unless the illegality in the investigation has caused prejudice to the accused (see H. N. Rishbud and Inder Singh vs The State of DelHi(1)].
Since there has been no miscarriage of justice in the present case because of the alleged non compliance with section 5A, the conviction of the accused appellants cannot be set aside on that score.
For the same reason, we are unable to accede to the contention of Mr. Kotwal that the conviction of the accused should be set aside because permission under section 5A of the Prevention of Corruption Act to SI Patil for investigation of the offence was granted in a ,casual manner and without the existence of sufficient reasons.
Lastly, it has been argued by Mr. Kotwal that the prosecution of the accused was barred by time under section 23 of the Bombay Land Improvement Schemes, Act, 1942.
The section reads as under "(1) No suit, prosecution or other legal proceeding shall be instituted against any public servant or person duly authorized under this Act in respect of anything in good faith done or intended to be done under this Act or the rules made thereunder.
(2)No suit or prosecution shall be instituted against any public servant or person duly authorized under this Act in respect of anything done or intended to be done, under this Act, unless the, suit or prosecution has been instituted within six months from the date of the act complained of.
" Sub section (1) of the section has plainly no application as it relates to anything done in good faith.
According to Bombay General Clauses Act, a thing shall be deemed to be done in good faith where it is in fact done honestly, whether it is done negligently or not.
The appellants admittedly were not acting honestly when they prepared the false documents in question and showed disbursement of Rs. 369.07 on March 11, 1966.
Mr. Kotwal, however, relies on sub section (2) of section 23 and (1) ; 517 submits that the prosecution could be instituted against the appellants only within six months from March 11, 1966.
As the charge sheet was submitted long after the expire of six months, the case against the accused appellants, according to the counsel, was barred by time.
This contention, in our opinion, is devoid of force.
Sub section (2) refers to suit or prosecution against a public servant or person duly authorized under the Act in respect of anything done or intended to be done under the Bombay Land Improvement Schemes Act.
It cannot be said that the acts of the accused appellants in preparing false documents and in committing criminal breach of trust in respect of the amount of Rs. 369 07 as also their act of criminal misconduct were done under the Bombay Land Improvement Schemes Act.
Sub section (2) of section 23 deals with anything done or intended to be done under the above mentioned Act by a public servant or a person duly authorized under the Act.
It has no application where something is done not under the Act even though it has been done by a public servant who has been entrusted with duties of carrying out improvement schemes under the above mentioned Act.
The impugned acts of the appellants in the present case were not in discharge of their duties under the above mentioned Act but in obvious breach and flagrant disregard of their duties.
Not only they did no rectification work for the Bundh which was a part of the improvement scheme, they also misappropriated the amount which had been entrusted to them for the purpose of rectification.
Prayer has also been made for the reduction of the sentence, but we see no cogent ground to interfere with the same.
The appeal consequently fails and is dismissed.
K.B.N. Appeal dismissed.

summary:
The appellants entrusted with the duties of carrying out improvement schemes under the Bombay Land Improvement Scheme Act, 1942, were charged with the offence of preparing false documents and committing criminal breach of trust in respect of certain amount.
It was alleged that even though no work had been done and no amount had been disbursed they prepared documents 'showing the doing of the work and payment of the amount, They were convicted under section 218 read with section 34, section 477A read with section 34 and section 409 read.
with section 34 of the Indian Penal Code as well as section 5(2).
read with section 5(1)(d) of the Prevention, of Corruption Act.
The High Court affirmed the conviction.
in the appeal to this Court it was contended that after the matter had been reported to the, higher authorities the rectification work was done and the money was disbursed for the purpose for which it had been entrusted; that the conviction was bad because of non compliance with section 5A of the Prevention of Corruption Act; and that the prosecution was barred by time under section 23 of the Bombay Land Improvement Schemes Act, 1942.
Dismissing the appeal, HELD : (i) There is no cogent ground to disagree with the trial court and the High Court that the accused had prepared false documents, bad also committed criminal breach of trust and were in the discharge, of their duties guilty of criminal misconduct as defined in section 5 of the Prevention of Corruption Act.
(ii)It is no answer to a charge of criminal misappropriation that after the matter bad been reported to the higher authorities the accused got the rectification work done or the money was subsequently disbursed for the purpose for which it had been entrusted.
According to explanation 1 to section 403 Indian Penal Code a dishonest misappropriation for a time only is "misappropriation" within the meaning of that section.
[515 D] (iii)It is well established that cognizance of a case, has, in fact, been taken by the court on a police report following investigation conducted in breach of provisions of section 5A of the Prevention of Corruption Act, the result of the trial cannot be set aside unless the illegality in the 511 investigation can be shown to have brought about a miscarriage of justice.
The reason for the above dictum is that an illegality committed during the course of investigation does not effect the competence and jurisdiction of the Court to, try the accused.
Where, therefore, the trial of the case has proceeded to termination, the invalidity of the preceding investigation would not vitiate the conviction of the accused as a result of the trial unless the illegality in the investigation has caused prejudice to the accused.
Since there has been no miscarriage of justice in the present case because of the alleged non compliance with section 5A the conviction of the appellants cannot be set aside on that score.
[515 H] H.N. Rishbud and Inder Singh vs The State of Delhi, ; , referred to.
(iv)Sub section (i) of the Bombay Land Improvement Schemes Act 1942 has plainly no application as it relates to anyth ing done in the good faith.
It cannot also be said that the acts of the appellants in preparing false documents and committing criminal breach of trust as also the act of criminal misconduct were done "under" the Bombay Land Improvement Schemes ' Act within the meaning of sub section (2).
The subsection has no application where something is done not under the Act even though it has been done by a public servant who has been entrusted with the duties of carrying improvement schemes under this Act.
The impugned acts of the appellants was not in discharge of their duties under the Act but in obvious breach and flagrant disregard of their duties.
[516 G 517 D]


judgement:
Appeal No. 909 of 1971.
Appeal under section 116 A of the Representation of the People Act, 1951 from the judgment and order dated May 21, 1971 of the Patna High Court in Election Petition No. 2 of 1970.
363 Frank Anthony, A. T. M. Sampath and E. C. A Agrawala, for.
the appellant.
L. M. Singhvi, Basudeva Prasad, Ravinder Narain and P. C. Bhartari, for the respondent.
The judgment of the Court was delivered by Grover, J.
This is an appeal from a judgment of the Patna High Court holding that the nomination papers of the respondent Smt.
Jahan Ara Jaipal Singh had been illegally rejected by the Returning Officer.
For that reason the election of the returned candidate Shri N. E. Horo from the 51 Khunti Parliamentary (Scheduled Tribe) Constituency in the State of Bihar was set aside.
On May 1, 1970 the Election Commission of India issued a notification calling upon the above named Parliamentary Constituency to elect a Member to the Lok Sabha in the vacancy caused by the death of late Shri Jaipal Singh.
The last date for filing the nomination papers was May 8, 1970.
The date for scrutiny was May 9, 1970.
Several persons filed nomination papers including Theodore Bodra and others.
Two nomination, papers were filed on behalf of the respondent who was a Congress (Ruling) candidate for the aforesaid by election.
According to the respondent she was the widow of late Shri Jaipal Singh and was a member of the Munda Scheduled Tribe in the State of, Bihar.
She filed certain certificates to that effect.
Bodra filed an objection petition to the nomination papers of the respondent.
The Returning Officer, after hearing arguments, passed an order rejecting the nomination papers of the respondent.
The nomination papers of all the other candidates were accepted.
After the polling took place, the result of the election was announced on June 3, 1970 and the appellant Shri Horo was declared elected to the Lok Sabha.
On July 8, 1970 the respondent filed an, election petition.
In the election petition it was stated inter alia that the petitioner (who is now respondent before us) was the widow of Late Shri Jaipal Singh and belonged to the Munda Scheduled Tribe although she was a Christian by religion.
It was averred in paragraph 3 of the petition that according to the Munda Customary Law when a Munda male married outside the Munda Tribe if his marriage is accepted by the Tribe he continues to be a member of that Tribe and his wife also acquires its membership.
It was pleaded that the wife being a member of her husband 's family had the right of succession to her husband 's property as well.
In para 4 of the petition it was stated that the petitioner was a Tamil by birth.
She married late Shri Jaipal Singh in the year 1954 364 according to the rights and rituals of Mundas in the presence of Parha Raja, Parha Munda, Parha Pahan, relatives of the deceased and the members of the Tribe at Morabadi a Mohalla of Ranchi.
In paragraph 5 the ceremonies which were performed according 'to Munda custom were mentioned.
These ceremonies inter alia were the washing of the wife 's feet by the elder sister of the husband and the holding of the feast of the male goat meat and drinks of Handia etc.
A new name was given by her mother in law to the petitioner, that name being Lankashri.
All these functions were witnessed by Parha Raja, Parha Munda, Parha Pahan and other members of the Tribe.
In paragraph 6 more details were given of the various other ceremonies also which were performed in connection with the marriage.
After referring to the relevant provisions of the Representation of People Act 1951, hereinafter called the 'Act ', it was stated that the Returning Officer had illegally allowed irrelevant personal aspersions to be .cast against the petitioner by her opponents.
It was alleged that the Returning Officer had been influenced by Bodra who was the Chairman of the Bihar Legislative Council.
The decision of the Returning Officer that the status of a Munda could be acquired only by birth and not by marriage and that the petitioner did not belong to the Munda Scheduled Tribe was challenged principally on the ground that the Returning Officer had not considered the custom by which if a Munda male marries a women not belonging to Munda Tribe and that is accepted by the Tribe the wife acquires the membership thereof.
In his written statement the returned candidate Shri Horo maintained that even though the election petitioner might be iving as wife of late Shri Jaipal Singh she was never married in accordance with the custom of the Munda Tribe prevalent in Chhota Nagpur.
It was denied that she was ever accepted as a member of the Munda community as no such custom is prevalent in that community.
It was denied that the ceremonies and rituals mentioned in the election petition had been performed in respect of the marriage of the election petitioner with the late Shri Jaipal Singh.
In paragraph 25 of the written statement it was asserted that a non Munda merely by virtue of the marriage with a Munda could not ipso facto become a Munda.
If a person was not born of a father belonging to a Scheduled Tribe he or she could not legally claim to be a member of the said Tribe.
It was asserted that since the election petitioner was not the daughter of a member of the Munda Tribe she could not claim to be a member of that Scheduled Tribe.
The allegations of mala fides made against the Returning Officer were described as baseless and extraneous.
During the pendency of the election petition the Lok Sabha was dissolved on December 27, 1970.
A petition was filed 365 before the High Court on behalf of Shri Horo that the election petition should be dismissed as having become infructuous.
The court made an order on January 14, 1971 holding that the election petition could not be dismissed on that ground.
On the pleadings of the parties seven issues were framed.
Issues 1, 2 and 3 which are material need be mentioned.
(1) Is the election petition maintainable ? (2) Whether the petitioner was the legally married wife of late Shri Jaipal Singh according to the custom of Munda Tribe prevalent in Chhota Nagpur ? (3) Whether the petitioner could legally acquire the status of a Munda by virtue of her marriage to late Shri Jaipal Singh and whether she had been accepted as a member of the Munda Tribe by the said Tribe ? It may be mentioned that so far as issue No. 1 was concerned the objection taken was that the election petition was defective on account of the non joinder of necessary parties.
When the election petition was filed only Shri Horo the returned candidate was impleaded but subsequently a petition was filed on behalf of the election petitioner making a prayer that the other contesting candidates were also necessary parties and should be impleaded.
The court directed that they be added as parties.
Shri Bodra who was one of the contesting parties was consequently impleaded as a party.
Later on it was prayed on behalf of the petitioner that on a further consideration it was found that the persons who had been subsequently added were not necessary parties and their names might be deleted.
Bodra 's name was therefore deleted.
The argument raised before the High Court was that Bodra being a necessary party to the petition under cl.
(b) of section 82 of the Act the petition became defective as soon as his name was struck off at the instance of the election petitioner.
The High Court was of the view that although in paragraph 21 of the election petition an allegation had been made that Bodra had influenced the Returning Officer, no evidence was led on that point and the case of the election petitioner was based solely on the ground that the nomination paper had been illegally and improperly rejected.
No relief had been sought on the ground that undue influence had been exercised on the Returning Officer by Bodra.
The High Court was also of the view that the allegation made in the election petition that Bodra had exercised his influence in getting the nomination paper of the election petitioner rejected did not fall within the ambit and scope of sub section
(7) of section 123 of the Act.
The contention that the petition was not maintainable was consequently rejected.
On the main issues, namely (2) and (3) it was expressly stated in the judgment that the factum of the marriage of the elec 366 tion petitioner with the late Shri Jaipal Singh had not been disputed.
The real controversy between the parties in the High Court centered round the point whether the marriage was in such form that the wife acquired the membership of the Tribe.
According to the arguments on behalf of Shri Horo as the election petitioner was not a Munda she could not belong to the Munda Tribe and that by marriage such a status could never be acquired.
The High Court examined the evidence relating to the question whether the marriage of the election petitioner with late Shri jaipal Singh had been performed in accordance with the Munda custom and was in such form that she was accepted and treated as a member of the Munda Tribe.
The court also considered the various authoritative books and other works relating to the Mundas and came to the conclusion that on a survey of the entire, evidence and the circumstances there was no reason to discredit the evidence which had been led on behalf of the petitioner that she was married according to the Munda custom and that it was with the approval and sanction of the Tribe that she had been accepted as a member of the Munda tribe.
The first contention raised by Mr. Frank Anthony on behalf of the appellant relates to issue No. 1.
It has been maintained by him that Bodra was a necessary party.
Apart from the fact that he was the only person who had filed a written objection to the nomination of the respondent the election petition filed by the respondent contained serious allegations of corrupt practice against Bodra.
As he had been given up as a party although impleaded at one stage the petition became defective and was not maintainable.
According to clause (b) of section 82 of the Act the petitioner must join as a respondent any candidate against whom allegations of any corrupt practices are made in the petition.
Section 86(1) provides that the High Court shall dismiss any election petition which does not comply inter alia with the provisions of section 81.
There can be little doubt that if the allegations made in the election petition against Bodra amounted to the commission of a corrupt practice by him it was obligatory on the part of the election petitioner to join him as a respondent to the petition.
It is equally clear that in that event the petition would have become liable to dismissal.
For finding out what a corrupt practice is we have to turn to section 123 of the Act.
According to Mr. Anthony the allegations made against Bodra fell within sub section
(7) of section 123 which is in the following terms : section 123 "The following shall be deemed to be corrupt, practices for the purposes of this Act: 367 .lm15 (7) The obtaining or procuring or abetting or attempting to obtain or procure by a candidate or his agent or, by any other person with the consent of a candidate or his election agent, any assistance other than the giving of vote for the furtherance of the prospects of that candidate 's election, from any person in the service of the Government and belonging to any of the following classes, namely : (a) gazetted officers; (b) stipendary judges and magistrates; (c) members of the armed forces of the Union: (d) members of the police forces; (e) excise officers; (f) revenue officers other than village revenue officers known as lambardars, malguzars, patels, deshmykhs or by any other name, whose duty is to collect land revenue and who are remunerated by a share of, or commission on, the amount of land revenue collected by them but who do not discharge any police functions; and (g) such other class of persons in the service of the Government as may be prescribed.
Explanation(1) In this section the expression "agent" includes an election agent, a polling agent and any person who is held to have acted as an agent in connection with the election with the consent of the candidate.
(2) For the purposes of clause (7) a person shall be deemed to assist in the furtherance of the prospects of a candidates 's election if he acts as an election agent of that candidate".
The allegations against Bodra are contained in para 21 of the election petition which may be set out : "That the Returning Officer, while hearing the objections illegally allowed irrelevant personal aspersions to be cast against the petitioner by her opponents and the aforesaid Shree Theodore Bodra even after protests made by and on behalf of the petitioner, Shrimati Jahanara Jaipal Singh, against the same '.
plain reading of the above paragraph shows that no such alletion was made that Bodra had influenced the Returning Officer I L887 Sup CI/72 368 for the purpose mentioned in section 123(7) of the Act.
The essential ingredient of that provision is to obtain, procure etc.
by a candidate of any assistance (other than the giving of a vote) for the furtherance of the prospects of that candidate 's election from any person in service of the Government and belonging to the classes mentioned in the sub section.
There is absolutely no allegation or suggestion in para 21 that the Returning Officer was influenced by Bodra for the purpose of rendering assistance for the furtherance of the prospects of the election of any candidate.
All that has been stated in that paragraph is that while hearing the objection the Returning Officer allowed irrelevant personal aspersions to be cast against the election petitioner by her opponents and Bodra.
It was further stated that on inquiry the election petitioner came to learn that the Returning Officer had been influenced by Bodra.
This influence apparently can have reference only to the conduct or act of the Returning Officer in allowing personal aspersions to be cast against the election petitioner.
Even by stretching the language it is not possible to discover any of the ingredients which would constitute a corrupt practice under section 123(7) of the Act.
Faced with this situation Mr. Anthony sought to rely on sub section (2) of section 123 the relevant part of which is as follows : "(2) Undue influence, that is to say, any direct or indirect interference or attempt to interfere on the part of the candidate or his agent, or of any other person with the consent of the candidate or his election agent with the free exercise of any electoral right: Provided that ". . " It is not possible to comprehend how the allegation contained in para 21 can be understood to amount to a suggestion of direct or indirect interference, or attempt to interfere on the part of the candidate etc.
with the free exercise of any electoral right.
We are accordingly satisfied that no allegation of any corrupt practice had been made in the election petition against Bodra and therefore he was not a necessary party within section 82 of the Act.
In this view of the matter it is not necessary to examine the criticism of Mr. Anthony of that part of the judgment of the High Court according to which one of the reasons given for deciding issue No. 1 in favour of the present respondent was that no relief had been sought on the ground that undue influence had 'been exercised on the Returning Officer by Bodra and that no evidence was led on that point.
On issues 2 and 3 Mr. Anthony has raised three main points The first was that the respondent who was a Christian by birth, was a divorcee and according to her own statement the decree 369 nisi in the divorcee proceedings had been made absolute on May 6, 1954.
According to her she got married to late Shri Jaipal Singh on May 7, 1954.
This marriage was a nullity as under section 57 of the she could not enter into a second marriage until after the expiry of six months from the date the decree had been made absolute.
Secondly the High Court had palpably erred in holding that the respondent had become a member of the Munda tribe by marrying Shri Jaipal Singh and set aside the order of the Returning Officer who had held that she was a Christian by birth and Munda tribe being an ethnic group its membership could not be acquired by marriage but could be acquired only by birth.
Thirdly it has been strongly urged that the respondent failed to prove the custom that a non Munda could be initiated into tribe as its full fledged member either by performance of certain rituals and ceremonies or by the acceptance as such by the tribe or its panchayat.
As regards the first point it was never canvassed or argued before the High Court.
No plea was taken by Shri Horo in the written statement that there could be no valid marriage between the respondent and late Shri Jaipal Singh owing to the provisions contained in section 57 of the until after the lapse of.
a period of six months from the date the decree of divorce was made absolute.
None of the issues which was framed by the High Court involve the question now sought to be agitated based on the provisions of section 57 of the .
It appears that advantage is sought to be taken from the statement of the respondent about the various dates when the decree absolute was granted and the date when the marriage took place between the respondent and the late Shri Jaipal Singh.
In the absence of any pleadings or issues no material has been placed on the record to show that in view of the provisions of section 57 of the aforesaid Act there could not be a valid marriage according to the Munda customary law.
It must be remembered that the respondent contracted a marriage with late Shri Jaipal Singh according to Munda rites and ceremonies and not as one Christian marrying another Christian.
Nor was the matter pursued in cross examination of the respondent and she was not asked as to how she could get over the bar of section 57 in theway of remarriage before the expiry of the prescribed period.
In these circumstances we do not consider that such a pointcan be allowed to be agitated for the first time before this Court.
On the second and the third points, a great deal of reliance has been placed on the following statement in the well known book of section C. Roy "Mundas and their country", 1912 Edn.
"The Munda tribe is divided into a large number of exogamous groups called kilis.
According to 370 Munda tradition, all the members of the same Kili are descended from one common ancestor.
But such a tradition may not be quite correct with regard to the original kilis.
Though exogamous as regards the kilis, the Mundas are endogamous so far as other tribes are concerned.
Thus, there can now be no valid marriage, according to Munda custom, between a Munda and the member of any other 'kolarian ' tribe, such as the Santals, the Kharias the Asurs, or the Bir hors".
According to Roy the family came to be evolved from tribes and sub tribes.
Communal marriage was superseded by the individual marriage and Matriarchal Age was superseded by Patriarchal.
Kinship came to be traced not as before, through a common female ancestor but through a male ancestor.
D. N. Mazumdar in his work on the Ho tribe entitled "Affairs of a Tribe", 1950 Edn.
points out that the rule of endogamy has its base in superstitious belief.
According to him villages which are closely allied by ties of marriage are those which share the same God and Spirits and the same Deonwa.
The influence of Deonwas, in other words, the knowledge of the Bongas of an area, determines the limit of exogamy, for there is a risk in marrying in villages the Bongas of which are unknown; (pp. 237 238).
From the account given by section C. Roy himself it appears that according to the Munda custom the rule of endogamy is not absolute; for instance, in the case of Munda female married or unmarried found to have gone astray with a man of a different caste or tribe, it is said, that the latter is summoned before a Panchayat and a heavy fine is imposed on the lover and the fine, if realised, is paid as compensation to the parents of the seduced maiden or the husband of the married female and the seducer is compelled to take the girl or woman as a wife or a mistress and in case of refusal (which is rare) to submit to the orders of the Panchayat.
The family of the seduced female remains outcaste until a purificatory ceremony is performed and thus restored to caste.
The members of the family then cook rice.
and pulse and themselves distribute the food to the assembled relatives; (see pp.
544 545.) The question that has to be enquired into is whether the strict rule of endogamy of the Munda tribe has been deviated from and whether custom has sanctioned such deviation.
D. W. Mazumdar in his work "Races and Cultures of India" deals with tribal organisations in Chapter 17.
According to him the definition that is found in the current literature on the subject is given in the Imperial Gazetteer which is, "A tribe is a collection of families bearing a common name, speaking a common dialect occupying or professing to occupy a common territory and is 371 not usually endogamous though originally it might have been so".
Endogamy is an essential feature of the tribe though intertribal marriages are breaking the limits of endogamy.
It is further stated by him that "the importance of the blood bond or the kinship group is forced to the background, the communal economy of the clan is superseded by individual desire for gain and property, money assumes an importance it seldom had before, and the ties of reciprocity and mutuality of obligation are reoriented to suit new conditions.
Tribal custom and practices which established social life lose their value and the choice of 'leader and of mate is guided by different considerations".
The Munda tribe cannot be said to be immune from the above process of change in their social Organisation.
Changes in their belief, customs, traditions and practices have taken place under the in fluence of Hinduism, Christianity, and on account of the impact of western education, urbanisation, industrialisation and improved means of communication.
The sense of individualism and lack of love for, the traditional code of conduct and social taboos ,ire stated to be apparent among the emerging urban industrial oriented adivasi communities.
D. N. Mazumdar has made an intensive study of the rule of endogamy among the Ho tribe which is an off shoot of the Munda tribe.
A reference to, the Ho practice may, therefore, help us in understanding the practice among the Mundas.
According to D. N. Mazumdar "A Ho does not marry outside the tribe as a rule but there is today no legal or social prohibition against his doing so.
Though tribal code has relaxed considerably those who work in the mining and industrial centers in and outside Kolhan contract such alliances and when they come back to their villages they are not outcasted by the society;" (pp. 124125, "Races and Cultures of India").
At another place he records : "The endogamy of the tribe is not sacred today, with the result that many marriages have taken place between the Hos and other tribes.
Liaison between Diku men and Ho girls is increasing, and cases that have occurred in Chaibassa during the last ten years or so would fill a volume.
Thus, there being no longer ,my deterrent to mating with strangers, social authority vested in the Killi punch has to exercise its prerogative to ensure a compliance with social traditions.
Killi exogamy has not led to an indiscriminate alliance between the different killis and as far as our knowledge goes, taboo on marriage outside a particular local area can be traced to a dread of unfamiliar Bongas, who were conceived as hostile,.
and therefore dangerous".
(p. 236).
372 L. P. Vidyarthi in his work mentioned before based on his study of the social life of the Oraon and Munda tribes living in the city of Ranchi points out that a good number of cases of marriage between tribals and non tribals have occurred and that in his investigation he came across 53 cases of non tribal males marrying tribal girls.
He points out that greater percentage of love marriages and marriages by 'Kept ' have been socially disapproved while 83.3% and 100 % of arranged and legal (civil) marriages have been approved.
(See pages 102 103).
We may how deal with the evidence produced by the parties on the above points.
P.W. I who was working as District Wel fare Officer in May 1970 at Ranchi and who belongs to the Munda tribe stated that if a Munda male married a non Munda girl and such marriage was accepted by the society it would be a valid and proper marriage.
The wife would, therefore, be accepted as a member of the tribe.
He had himself married an Oraon girl and his wife though a non Munda has been accepted as a member of the Munda tribe.
He further deposed that if the Munda married a non Munda a feast is given and if the elders of the society accept the marriage and participate in the feast that by itself would show that the tribal society has accepted the marriage and the wife has become a member of the tribe.
P.W. 2 who is a nephew of the late Shri Jaipal Singh gave details of the ceremonies which were performed when the marriage between his uncle and the respondent took place.
After the performance of those ceremonies the members of the tribe and the family declared that the respondent had been accepted as a member of the tribe.
He himself is married to a non Munda girl though he was married according to Munda marriage rights as well as according to Hindu law.
P.W. 3 who was at the material time working as Assistant Director in Sociology, Bihar Tribal Welfare Institute, stated that he had been doing research on the subject of Bihar Tribal Marriage and Family Transformation with special reference to Family law.
One of his major duties was to ascertain from the members of different tribes facts relating to the subject of his research.
According to his evidence a Munda male can marry a non Munda girl.
After adopting a special procedure in some cases a non Munda wife is accepted as a member of the tribe.
A certain procedure or formality has to be gone through.
The council of elders of the tribal people has to be consulted and the special reason for the marriage is to be stated.
Then various rituals are gone through and the marriage is allowed by the elders.
He gave instances where, a Munda male had married a non Munda girl and their marriage had been accepted by the tribal people.
One of these instances given by him related to persons belonging to the Santhals and Ho tribes.
He maintained that the customs prevalent among these tribes were broad 373 ly the same as among the Mundas.
In cross examination he stated that he had met the members of the Munda elder council and he had remained in touch with that council since 1952.
He had made special research of Jojo Hatu which was a Munda village.
He claimed to have submitted a report to the government in which he had collected hundreds of cases where a girl of a particular tribe had married outside her tribe.
P.W. 4 was the Superintendent of the Anthropological Survey of India, Ministry of Education.
As an Anthropologist he had to undertake full study in different parts of India mostly among the tribal community.
He had studied Munda tribal custom which assignment had been given to him in 1965 66.
In course of the research he found that a Munda could marry a non Munda girl even before 1954.
He gave three kinds of unusual marriages one of which was where a Munda male married a non Munda female.
The social consequences of that marriage was called Jati Bora.
That meant that the Munda male had committed an offence against the whole community.
Normally he would be ostracised along with his family but there was a process by which he and his wife could be admitted into the community.
This process was known 'Niyar ' which means "to bring in or take in".
The offending party invites the members of the Parha gives them a feast at which a white goat is sacrificed and the blood is smeared on the body of the boy and the girl along with Tarmolik and then they are allowed to sit along with the members of the community in the same Pankti.
After that they are formally considered as members of the community.
He was specifically asked a question with regard to the manner in which a Munda boy marrying a non Munda girl would be accepted by the community and his reply was that in his opinion the Parha was the ultimate authority in the matter of acceptance of a non Munda girl in the community.
If a Parha accepted her that was final.
in cross examination he stated that if a marriage of the nature under discussion is not approved by Parha he did not think it would be accepted by the members of the society.
It may be mentioned that the evidence of this witness has been subjected to a good deal criticism by Mr. Anthony for the reason that he was only expressing an opinion on the last matter and was not making a def inite statement of fact.
P.W. 5, who was attached to the office of the Deputy Commissioner, Palamau, gave an ac count of the ceremonies which were performed of the marriage between the respondent and late Shri Jaipal Singh.
According to him the elders of the community unanimously decided that since permission had been given by the elders they would be taken as members of the tribe.
He denied the suggestion that it was on account of the influence of late Shri Jaipal Singh that Pahans had given sanction to the marriage.
According to him there had been other cases also where such sanction had been given.
374 P.W. 8 who claimed to be a Parha Raja of three Parhas, viz., Takara Parha, Sada Parha and Sagha Parha comprising 36 vil lages also gave evidence about the ceremonies which were performed at the marriage of late Shri Jaipal Singh with the respondent.
After the performance of the ceremonies the Samaj of the Munda tribe accepted the marriage, according to him.
He deposed to other instances where Munda had married non Mundals.
He had attended a marriage of a Munda who had married a Ho girl.
Sanction was given by the elders to that marriage.
It is unnecessary to refer to the evidence of P.W. 10 who is also a Pahan and who claimed to have been present at the time of the marriage in question.
He made a statement which has been subjected to justifiable criticism by Mr. Anthony about the document Exht 3.
His evidence, therefore, does not deserve consideration.
Out of the witnesses examined on behalf of the respondent mention may be made of the statement of Shri Horo himself who appeared as R.W. 6.
After stating that the late Shri Jaipal Singh who was a leader of the Jharkhand Party and was an Adivasi and a Munda professing the Christian religion, he affirmed that the respondent did not have the right and status of a Munda on the basis of established custom.
He admitted that there was a custom that a Munda who had been excommunicated from the tribe could be taken back but according to him that person must be a Munda and no non Munda could be accepted as a member of the tribe.
The Munda could of course marry a non Munda but in the manner in which the Munda usually married a Munda.
The custom among the Mundas is changing and it is dynamic and not static.
The other witnesses produced by Shri Horo are not impressive and do not afford much assistance in deciding the points under discussion.
According to the observations of the High Court Shri Horo did not examine any witness on his behalf who could say that he had made a special study and research of the marriage custom of the Munda tribe and that such a marriage was not acceptable in the present times in spite of all the changes which have taken place in the life and social structure of the community owing to the impact of the various factors which have been mentioned in the authoritative studies of eminent Anthropologists mentioned before.
Our attention ha,, been drawn by Mr. Anthony to certain decisions for the proposition that in a tribe which is endoganotus birth alone can confer the status of membership of the tribal community.
In V. V. Giri vs D. Suri Dora & Others(1) one of the, questions raised, was whether respondent No. 1 in that case had ceased to be a member of the Schedule Tribe at the material time because be had become a Kshtriya.
This court observed that it (1) 375 was essential to bear in mind the broad and recognised features of the hierarchical social stricture prevalent amongst the Hindus.
It was considered enough to state that whatever might have been the origin of the Hindu castes and tribes in ancient times, gradually status came to be based on birth alone.
It was pointed out that a person who belonged by birth to a depressed caste or tribe would find it very difficult, if not impossible, to attain the status of a higher caste amongst the Hindus by virtue of his volition, education, culture and status.
We are unable to see how this case can be of any assistance in deciding the matter before us, namely, whether a non Munda can by marriage be recognised as a member of the Munda tribe in certain circumstances.
The High Court, after discussing the evidence and referring to other authoritative books like "Tribes and Castes of Bengal" by H. H. Risley and "Encyclopedia Mundarica" by Rev. John Hoffman as also the statement in Encyclopedia Britannica, Vol. 15, and the Encylopaedia of Religion and Ethics by James Hastin ings, Vol.
IX, apart from the work of J. Reid, I.C.S., on Chhota Nagpur Tenancy Act, observed that although originally very severe restrictions were imposed amongst the Mundas as far as marriage in their own Kili or seat was concerned, the process of Munda assimilation to the larger Indian society facilitated by im proved communications and the introduction of formal system of education was being accelerated under the independent Government of India.
In Encyclopedia Britannica, Vol. 15 in the Chapter relating to Mundas it is also mentioned.
"The Munda speaking people, with the other Indian tribal groups, are being encouraged to adopt new customs and to become fully participating members of Indian society".
(page 991).
Similarly in the Encyclopedia of Religion and Ethics by James Hastings, Vol.
IX, it has been stated as to how Munda customs are being changed with the impact of the influence of Christianity.
Referring to the Chapter in Reid 's book it has been noticed by the High Court that according to the Munda conception a wife becomes a member of the Kili of her husband by legal fiction.
The High Court further relied on the decision in Wilson Reads vs C. section Booth(1) in which it was held that the question whether a person can be regarded as a member of the Khasi tribe was a question of fact depending upon the evidence produced in the case.
It was said that the whole object of reserving a seat for a particular tribe was to afford the community, ;is a whole, a right of representation and therefore the question of the membership of a particular individual of that community could not be considered divorced from the very object of legislation.
Thus the conduct of the community which had been given the right of special representation.
the manner and how the (1) A. T. R 376 community regarded a particular individual and whether the community as a whole intended to take the individual within its fold were all matters which would be relevant for consideration of the question whether a particular person could be regarded as a member of the Scheduled Tribe.
The High Court was alive to the fact and this point of distinction has been greatly emphasised by Mr. Anthony that in that case the appellant claimed to be a Khasi, his father being a European and his mother a member of the Khasi tribe.
Even though the facts were different, the approach in such matters which commended itself to the Assam High Court can hardly be regarded as unsound.
It appears to us, on a full consideration of the entire material.
that the following matters stand established in the present case : (1) The Mundas are endogamous and inter marriage with non Mundas is normally prohibited.
(2) That a Munda male along with his family on marrying a non Munda girl is often ex communicated or outcasted.
(3) That the rule of endogamy is not so rigid that a Munda cannot marry a non Munda after performing special ceremonies.
(4) That such marriages have been and are being sanctioned by the Parha Panchayat.
(5) That where a Munda male and his family are ' outcasted for marrying a non Munda they are admitted to the tribe after certain special ceremonies are performed.
Even in the account given by S.C. Roy as well as by P.W. 4 a Munda male is excommunicated for marrying a non Munda girl but such excommunication is not automatic.
It is left to the discretion of the panchayat.
If the panchayat approved of a particular marriage with a non Munda then no question of excommunication arises.
Thus several inroads appears to have been made on the rigid system of endogamy which might have existed at one time but over the course of years several matters are left to be decided by the panchayat or elders of the tribe itself.
There is no evidence whatsoever that the late Shri Jaipal Singh was excommunicated or outcasted because he had married a non Munda.
On the contrary there is abundant evidence that his marriage was accepted as valid and was approved by the Parha Panchayat or the elders of the tribe.
Reverting to the argument that a non Munda women cannot become a member of the Munda tribe by marriage even if the 377 marriage be valid because the Mundas are a patriarchical society and constitute an ethnic group, we have already referred to the evidence of the witnesses produced by the respondent who had made, special research in the matter and even if we exclude the opinion of P.W. 4 who was Superintendent of Anthropological Survey of India that the Parha was the final authority in the matter of acceptance of an non Munda girl in the community but the rest of his evidence cannot be brushed aside.
From all this evidence it is proved that once the marriage of a Munda male with a non Munda female is approved or sanctioned by the Parha panchayat they become members of the community.
They contention of Mr. Anthony that a person can be Munda by birth alone can be sustained only if the custom of endogamy is established without any exception.
We have already held that the rule of endogamy has not been proved to exist in the rigid or strict form canvassed by Mr. Anthony.
That rule has not been strictly followed and the marriage of a Munda male with a non Munda woman has been and is being approved and sanctioned by the Parha panchayat.
If a non Munda woman 's marriage with a Munda male is valid it is difficult to say that she will not become a member of the Munda tribe.
The, concept of a tribe is bound to undergo changes, when numerous social, economic, educational and other like factors in a progressive country start having their impact.
It is noteworthy that a Hinduised Munda and a Munda converted to Christianity can inter marry and conversion to Christianity has not become an obstacle in the way of such marriage among the Mundas.
Mr. Horo himself in all fairness affirmed that custom among the Mundas was not static but was dynamic and was changing.
We do not find cogent or weighty reasons for disagreeing with the view of the High Court on the points under discussion.
We may also refer to Article 330 of the Constitution accord ing to which the seats reserved for the Scheduled Tribes are to be reserved in the House of the People, inter alia, for members of these Tribes.
Under section 33 (2) of the Act a candidate for a reserved seat has to file a declaration specifying a particular caste or tribe of which he is a member.
Article 342(1) empowers the President to specify 'the tribes or tribal communities or parts of or groups within tribes or tribal communities which shall, for the purposes of the Constitution, be deemed to be Scheduled Tribes in relation to the State or Union territory as the case may be.
In Parts 1 to 12 of the Schedule to the Constitution (Scheduled Tribes) Order 1952 are specified the tribes or tribal communities or parts of or groups within the tribes or tribal communities who are to be deemed to be Scheduled tribes.
Munda is one of such specified tribes or tribal communities.
It can well be said that the term "tribal community" has a wider connotation than the expression "tribe".
A person who, according to the strict custom of a tribe '.
378 cannot be regarded as a member of that tribe may well be regarded as a member of that tribal community.
Where a non Munda woman is married to a Munda male and the marriage is approved and sanctioned by the Parha Panchayat of that tribe and the marriage is valid she may not, on the assumption that the rule of endogamy prevails, become a member of the Munda tribe in the strict sense as not having been born in the tribe.
She cannot, however, be_ excluded from the larger group, namely, the tribal community.
The High Court has taken the view that the use oil the term "tribal communities" in addition to the term "tribes" in Article 342 shows that a wide import and meaning should be given to these words and even if the respondent is not a member of the Munda tribe by virtue of birth she having been married to a Munda after due observance of all formalities and after obtaining the approval of the elders of the tribes would belong to the tribal community to which her husband belongs on the anology of the wife taking the husband 's domicile.
Even without invoking the doctrine of domicile the respondent 's marriage with late Shri Jaipal Singh who was a Munda having been approved and sanctioned by the Parha Panchayat of the Munda tribe it can be said that she became a me mber of the Munda tribal community.
We have not been shown any infirmity in the reasoning of the High Court on this point.
When a person, in the course of time, has been assimilated in the community it is somewhat difficult to comprehend how that person can be denied the rights and privileges which may be conferred on that community even though tribal by constitutional provisions.
In the result this appeal fails and it is dismissed but in view of the nature of the points involved we leave the parties to bear their own costs in this Court.
V.P.S. Appeal dismissed.

summary:
The respondent, who was a Tamil by birth and Christian by religion, had married a member of the Munda Schedule Tribe in the State of Bihar.
On the death of her husband, who was a member of the Lok Sabha, she stood for election from a Parliamentary (Schedule Tribe) Constituency in the State.
Another candidate B filed objections to her nomination that she was not a Munda and her nomination was rejected by the Returning, Officer, and the appellant was elected.
She filed an Election Petition for setting aside the election of the appellant.
She alleged that according to, the Munda Customary Law when a Munda male married outside the tribe, if his marriage was accepted by the tribe, he continued to be a member of the tribe and his wife also acquired its membership, and so, she became a Munda.
In the petition it was also stated that while hearing B 's objections the Returning Officer allowed irrelevant personal aspersions to be cast against her and that the Returning Officer had been influenced by B. The High Court allowed the petition.
Dismissing the appeal to this Court, on the questions : (1) Whether B. was a necessary party to the Election Petition; (2) Whether the marriage of the respondent, who was a divorcee, was a nullity under section 57 of the , in that she married her Munda husband within.
six months from the date of the decree being made absolute; and (3) Whether the petitioner became member of the Munda Tribe, HELD : (1) According to section 82(b) of the Representation of the People Act, 1951, a petitioner must join as a respondent any candidate against whom allegations of any corrupt practices are made in the election petition.
Section 123 deals with corrupt practices.
The essential ingredient of section 123(7) on which reliance was placed, is to obtain, procure etc.
by a candidates of any assistance (other than the giving of a vote)for the furtherance of the prospects of that candidate 's election from any person in the service of the Government and belonging to the classes.
mentioned in the sub section.
In the present case, there was absolutely no allegation or suggestion that the Returning officer was influenced by B for the purpose of rendering assistance for the furtherance of the prospects of a candidate 's election.
The influence, mentioned in the election petition, had reference only to the conduct of the Returning Officer is allowing personal aspersions to be cast against the respondent.
The allegations do not also amount to any suggestion of direct or indirect interference or attempt to interfere on the part of a candidate with the free exercise of any electoral right, and hence, do not amount to undue influence under section 123(2).
Therefore, since there was no allegation of any corrupt practice against B be was not a necessary party.
[366 D H;368 A G] 362 2 The respondent had contracted a marriage with a Member of the Munda Tribe according to Munda rites and ceremonies and not as one ,Christian marrying another Christian.
In the absence of any pleadings .Or issues or material on record to show that in view of the provision, of Is.
57 of the there could not be a valid marriage ,a ccording to Munda customary law, such a contention could not be allowed to be agitated for the first time in this Court.
[369 D G] 3(i) The information contained in authoritative books dealing with Munda Customary Law and the evidence of witnesses who had made special research in the matter, show that : (a) The Mundas are endogamous and intermarriage with non Mundas is normally prohibited; (b) A Munda male along with his family, on marrying a non Munda girl, is often excommunicated or outcasted; (c) the rule of endogamy is, however, not so rigid that a Munda cannot marry a non Munda even after performing special ceremonies; (d) Such marriages have been and are being sanctioned by Parha Panchayat, and (e) Where a Munda male and his family are outcasted for marrying a non Munda they are readmitted .to the tribe after certain special ceremonies are performed.
[376 C F] In the present case, there is no evidence that the deceased husband of the respondent was ex communicated or outcasted because he had married a non Munda; on the contrary, the evidence is that the rule of endogamy has not been observed in a rigid or strict form, and that the marriage was accepted as valid and was approved by the Parha Panchayat and the elders of the Tribe.
Once the marriage of a Munda male with a non Munda female is approved or sanctioned by Parha Panchayat they become members ,of the community.
The contention that a person can be a Munda by birth alone can be sustained only if the custom of endogamy is established with,out any exception.
[377 A D] (ii) Munda is one of the specified tribes or tribal communities in the 'Schedule to the Constitution (Schedule Tribes) Order 1952.
The term 'tribal community ' is of wider connotation than the expression 'tribe '.
A "person who, according to the strict custom of a tribe, cannot be regarded ,as a member of that tribe may be regarded as a member of that tribal community.
Where a non Munda woman is married to a Munda male and the marriage is approved and sanctioned by the Pahra Panchayat of that tribe, and the marriage is valid, she may not, on the assumption that 'the rule of endogamy prevails, become a member of the Munda tribe in the stick sense as not having been born in the tribe.
But a marriage between a Hinduised Munda and a Munda converted to Christianity is permitted.
That being so, the wife cannot be excluded from the large r group, namely, the tribal community.
In the present case the respondent 's manage with a Munda male having been approved and sanctioned by the Pahra panchayat of the Munda tribe, it can be said that she became a member of the Munda tribal community.
When a person, in course ,of time, has been assimilat ed into the community that person cannot be denied the rights and privileges which may be conferred on that community, even though tribal, by Constitutional provisions.
[377 E, H; .378