judgement:
er Petition No. 7 of 1965.(Under Section 527 of Criminal Procedure Code).
T. R. Bhasin, for the petitioner.
G. C. Kasliwal, Advocate General for the State of Rajasthan, K. K. Jain and R. N. Sachthey for the Respondent.
The Judgment of the Court was delivered by Hidayatullah, J.
This is a petition under section 527 of the Code of Criminal Procedure for the transfer of a criminal case (No. 2 of 1964 state vs Gurcharan Dass Chadha I.P.S.) which is pending in the Court of the Special Judge, Bharatpur, Rajasthan to another criminal court of equal or superior jurisdiction subordinate to a High Court other than the High Court of Rajasthan.
The petitioner is the accused in that case and he is being tried under sections 120B/161, Indian Penal Code and section 5(1)(a)(d) and 5`2) of the Prevention of Corruption Act.
prosecution has been sanctioned by the Government of India.
In December, 1962, he was serving as Superintendent of Police and was selected to be Commandant of 8th Batallion of Rajasthan Armed Constabulary.
He avers that he took over as Commandant on January 7, 1963 but was placed under suspension the same day and a case was registered on January 12, 1963 which has resulted in the present prosecution against him.
The petitioner apprehends for reasons to be stated presently that he is not likely to get a fair, just and impartial trial in the State of Rajasthan owing to the hostility and influence of the then Law Minister who was also Minister incharge of Home Department of the State, the Additional Inspector General of Police, Anti Corruption, and the Deputy Inspector General of Police, Ajmer Range, Jaipur.
In support of his petition he has referred to many incidents and filed many documents.
He has sworn an affidavit that he entertains an apprehension that these persons would interfere with the trial of the case in the State of Rajasthan and that a transfer of the case outside the State is in the interest of justice.
680 The State Government has opposed the application strenu.
ously and has questioned the jurisdiction of this Court to transfer under the powers conferred on it by section 527 Code of Criminal Procedure a case made over by the Government of the State of Rajasthan for trial to a Special Judge under the Criminal Law Amendment Act, 1952 (Act 46 of 1962).
In addition, the State Government joins issue on the facts alleged and the merits of the claim for the transfer of the case.
While this petition was pending the State Government served the petitioner with a notice and a charge sheet to show cause why he should not be proceeded against for breach of Rule No. 8 of the All India Services (Conduct) Rules, 1954, because he had communicated "directly/indirectly official documents and information to Government servants/other persons to whom he was not authorised to communicate such documents/information" as indicated and detailed in a statement of allegations accompanying the notice and the charge.
The State Government has appended to this charge two appendices giving details of 31 and 16 docu ments respectively, which were said to have been so communicated by the petitioner to his counsel Messrs. R. K. Rastogi and D. P. Gupta, Advocates of Jodhpur and others named as "non petitioners" in a writ petition which he had filed in the High Court of Rajasthan (No. 794 of 1964) and which he subsequently withdrew on December 23, 1964 before taking action to file the present petition.
The notice, the charge and the statement of allegations accompanying them were signed by Mr. Vishnu Dutt Sharma, Special Secretary to Government.
On receiving this charge, the petitioner moved another petition in this Court for taking action against Mr. Shrama and the Government of Rajasthan for contempt of this Court.
At an earlier hearing, where we were considering the petition for transfer, the other petition was brought to our notice and we were about to order issuance of notices to the contemners but the Advocate General of the Government of Rajasthan took notice of the petition and offered to take action in respect thereof.
As a result the State of Rajasthan through the Chief Secretary to the Government and Mr. Sharma separately filed their replies to the second petition and attempted justification.
Mr. Sharma abjured knowledge of the contents of the petition for transfer and denied any malice, ill will or grudge, pleading good faith.
The matter would have received serious attention from us but for the fact that at the next hearing the plea for justification was abandoned and an unconditional apology was entered on behalf of the State Government as well as Mr. Sharma.
The latter was present in Court and expressed regret for what had.
happened.
681 We accepted the appology and do not, therefore,feel called upon to consider the plea of justification which, in any event, is not a plea heard in bar when contempt is clear and manifest.
There could be no question in the present case that by charging the petitioner with proceedings of a different kind there was, if not direct, at least indirect pressure brought upon him in the prosecution of his petition for.
transfer.
Of this we would have taken serious note be cause it was likely to have hampered the petitioner in prosecuting his petition freely before this Court and would have resulted in obstruction of administration of justice.
If the petitioner was guilty of any lapse under the Services (Conduct) Rules or even guilty of an offence the action to which he would be otherwise subject could wait till the present proceedings had terminated and there was really no reason to hurry with a charge against the petitioner which charge would have put him under duress of some kind.
Such a course of action 'is to be deprecated and we are glad to note that the Government of Rajasthan and the Secretary concerned have seen the matter in this light and have made amends by proper contrition.
We do not feel called upon to say more than this on the petition for contempt which shall be filed.
We shall now take up the objection that this Court lacks jurisdiction to transfer the case pending before the special Judge, Bharatpur.
This objection goes to the root of the matter.
Questions of inherent jurisdiction must always be decided before the merits are considered because to dismiss the petition after consideration of merits itself involves an assumption of jurisdiction.
We must accordingly consider the objection even though we are satisfied that the petition must fail on merits.
The power which the petitioner is invoking flows from section 527 of the Code of Criminal Procedure.
The first two sub sections of that section are material here and they read: "527.
Power of Supreme Court to transfer cases and appeals. (1) Whenever it is made to appear to the Supreme ' Court that an order under this section is expedient for the ends of justice, it may direct that any particular case or appeal be transferred from one High Court to another High Court or from a Criminal Court subordinate to one High Court to another Criminal Court of equal or superior jurisdiction subordinate to another High Court.
(2) The Supreme Court may act under this section only on the application of the Attorney General of India 682 or of a party interested, and every such application shall be made by motion which shall, except when the applicant is the Attorney General of India or the Advocate General, be supported by affidavit or affirmation.
It is conceded by the Advocate General that the power to transfer criminal cases as laid down in the section is ordinarily available but he contends that a case assigned by the State Government under the Criminal Law Amendment Act, 1952 to a special Judge cannot be transferred at all because under the terms of that Act, which is a self contained special law, such a case must be tried by the special Judge designate only.
The argument is extremely plausible but does not bear close scrutiny.
To understand the argument and how it is refuted certain provisions of the Act may be seen.
The first section of the Act gives the short title of the Act.
Sections 2 and 3 of the Act introduce changes in the Indian Penal Code by increasing the punishment in section 165 and by inserting section 165A which provides for punishment for abetment of offences defined in sections 161 and 165.
Sections 4 and 5 of the Act make some amendments in section 164 of the Indian Penal Code and section 337 of the Code of Criminal Procedure.
These four sections have been repealed by the Repealing and Amending Act, 1957 as they were no longer necessary.
The sections which we have to consider are sections 6, 7 and 8 of the Act.
Section 6 confers power on the State Government to appoint special Judges for the trial of certain offences.
The parts relevant to our purpose read "6.
Power to appoint special judges.
(1) The State Government may, by notification in the official Gazette, appoint as many special Judges as may be necessary for such area, or areas as may be specified in the notification to try the following offences, namely : (a) an offence punishable under section 161, section 162, section 163, section 164, section 165, or section 165 A of the Indian Penal Code (Act XLV of 1860), or sub section (2) of section 5 of the Prevention of Corruption Act, 1947 (11 of 1947) (b) Any conspiracy to commit or any attempt to commit or any abetment of any of the offences specified in clause (a).
683 Section 7 next provides what cases shall be tried by special Judges.
The first two sub sections read : "7.
Cases triable by special Judges.
(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (Act V of 1898) or in any other law the offences specified in sub section (1) of section 6 shall be triable by special Judges only.
(2) Every offence specified in sub section (1) of section 6 shall be tried by the special Judge for the area within which it was committed, or where there are more special Judges than one for such area, by such one of them as may be specified in this behalf by the State Government." The procedure which the special Judge has to follow is laid down in section 8 (1) and by sub section (2) of the same section certain powers are confered on the special Judge.
Sub section (3) then provides: "8.
Procedure and Powers of Special Judges.
(1). . . . . . (2). . . . . . (3) Save as provided in sub section (1) or sub section (2), the provisions of the Code of Criminal Procedure, 1898, shall so far as they are not inconsistent with this Act, apply to the proceedings before a special Judge; and for the purposes of the said provisions, the Court of the Special Judge shall be deemed to be a Court of Session trying cases without a jury or without the aid of assessors and the person conducting a prosecution before a special Judge shall be deemed to be a public prosecutor. . .
There is no need to refer to other provisions of the Act which do, not bear upon this matter.
The Advocate General, Rajasthan in opposing the petition relies, principally on the provisions of section 7(1) and (2) and contends that the two sub sections create two restrictions which must be read together.
The first is that offences specified in section 6(1) can be tried by special Judges only.
The second is that every such offence shall be tried by the special Judge for the area within which it is committed and if there are more special Judges in that area, by the 684 special Judge chosen by Government.
These two conditions, being Statutory, it is submitted no order can be made under section 527 be because on transfer, even if a special Judge is entrusted with the case, the second condition is bound to be broken.
No doubt sub section (1) of section 7 lays down that the trial of an offence specified in sub section (1) of section 6 must be by a special Judge only but that condition can be fully met by transferring the case to another special Judge.
Indeed section 527 itself contemplates that the transfer should be to a court of equal or superior jurisdiction and we presume that there are special Judges in every State of India.
The selection of a special Judge causes no difficulty.
It is the second condition which is really pleaded in bar.
The provision of sub section (2) of section 7 is that an offence shall be tried by the special Judge for the area within which it is committed.
This condition, if literaly understood would lead to the conclusion that a case once made over to a special Judge in an area where there is no other special Judge, cannot be transferred at all.
This could hardly have been intended.
If this, were so, the power to transfer a case intrastate under section 526 of the Code of Criminal Procedure, on a parity of reasoning, must also be lacking.
But this Court in Ramchandra Prasad vs State of Bihar(1) upheld the transfer of a case by the High Court which took it to a special Judge who had no jurisdiction in the area where the offence was committed.
In holding that the transfer was valid this Court relied upon the third sub section of section 8 of the Act.
That sub section preserves the application of any provision of the Code of Criminal Procedure if it is not inconsistent with the Act, save as provided in the first two sub sections of that section.
The question, therefore, resolves itself to this : is there an inconsistency between section 527 of the Code and the second sub section of section 7 ? The answer is that there is none Apparently this Court in the earlier case found no inconsistency and the reasons appear to be these : The condition that an offence specified in section 6(2) shall be tried by a special Judge for the area within which it is committed merely specifies which of several special Judges appointed in the State by the State Government shall try it.
The provision is analogous to others under which the juris diction of Magistrates and Sessions Judges is determined on a territorial basis.
Enactments in the Code of Criminal Procedure intended to confer territorial jurisdiction upon courts and Presiding Officers have never been held to stand in the way of transfer of ,criminal cases outside those areas of territorial jurisdiction.
The (1) ; 685 order of transfer when it is made under the powers given by the Code invests another officer with jurisdiction although ordinarily he would lack territorial jurisdiction to try the case.
The order of this Court, therefore, which transfer a case from one special Judge subordinate to one High Court to another special Judge subordinate to another High Court creates jurisdiction in the latter in much the same way as the transfer by the High Court from one Sessions Judge in a Session Division to another Sessions Judge in another Session Division.
There is no comparison between the first sub section and the second sub section of section 7.
The condition in the second sub section of section 7 is not of the same character as the condition in the first sub section.
The first sub section creates a condition which is a sine qua non for the trial of certain offences.
That condition is that the trial must be before a special Judge and laye emphasis on the fact that trial must be before a special Judge appointed for is on a par with the distribution of work territorially between different Sessions Judges and Magistrates.
An order of transfer, by the very nature of things must, some times, result in taking the case out of the territory and the provisions of the Code which are preserved by the third sub section of section 8 must supervene to enable this to E be done and the second sub section of s, 7 must yield.
We do not consider that this creates any inconsistency because the territorial jurisdiction created by the second sub section of section 7 operates in a different sphere and under different circumstances.
Inconsistency can only be found if two provisions of law apply in identical circumstances and create contradictions.
Such a situation does not arise F when either this Court or the High Court exercises its powers of transfer.
We are accordingly of the opinion that the Supreme Court in exercise of its jurisdiction and power under section 527 of the Code of Criminal Procedure can transfer a case from a special Judge subordinate to one High Court to another special Judge subordinate to another High Court.
This brings us to the question of the merits of the petition.
The petitioner is being prosecuted for offences under section 120B/161 of the Indian Penal Code and section 5(1)(a)(d) and 5(2) of the Prevention of Corruption Act.
His apprehension is that the case against him is H the result of the machination of two Police Officers and one Mr. Mathura Dass Mathur who was the Home Minister in 1962.He also alleges hostility on the part of the State Government.
He has given instances which in his opinion prove that the above two 686 officers, the Home Minister and the State Government are hostile to him.
In relation to the State Government he has alleged that when he was appointed Commandant of the 8th Battallion of Rajasthan Armed Constabulary the State Government down graded his post, otherwise he would have received a higher starting pay.
He also alleges that his suspension and prosecution were made to coincide With his assumption of new duties so that he might not be able to join his new post.
With regard to the Home Minister the petitioner has given five instances in which he apparently crossed the minister 's path and gave him room for annoyance.
In regard to the two Police Officers he has averred that the Deputy Inspector General of Police, Ajmer Range (Hanuman Prasad Sharma) and he had some differences on three occasions.
He has also given similar instances of hostility towards him entertained by Sultan Singh, Deputy Inspector General of Police.
On the basis of these he says that he entertains an apprehension that he will not receive justice in the State of Rajasthan.
The law with regard to transfer of cases is well settled.
A case is transferred if there is a reasonable apprehension on the part of a party to a case that justice will not be done.
A petitioner is not required to demonstrate that justice will inevitably fail.
He is entitled to a transfer if he shows circumstances from which it can be inferred that he entertains an apprehension and that it is reasonable in the circumstances alleged.
It is one of the principles of the administration of justice that justice should not only be done but it should be seen to be done.
However, a mere allegation that there is appre hension that justice will not be done in a given case does not office.
The Court has further to see whether the apprehension is reasonable or not.
To judge of the reasonableness of the apprehension the State of the mind of the person who entertains the apprehension is no doubt relevant but that is not all.
The apprehension must not only be entertained but must appear to the Court to be a reasonable apprehension.
Applying these principles it may be said that there is a possibility that the petitioner entertains an apprehension that certain persons are hostile to him but his apprehension that he will not receive justice in the State of Rajasthan is not in our opinion reasonable.
All the facts which he has narrated bear upon past events in his official life.
Nothing has been said which will show that there is in any manner an interference direct or indirect with the investigation of the offences alleged against him or the trial of the case before the special Judge, Bharatpur.
A general feeling that some persons are hostile to the petitioner is not sufficient.
There must be material 687 from which it can be inferred that the persons who are so hostile are interfering or are likely to interfere either directly or indirectly with the course of justice.
Of this there is no trace either in his petition or in the arguments which were advanced before us.
Nor does the petitioner allege anything against the special Judge who is trying the case.
In this view of the matter we decline to order trans fer of the case from the special Judge, Bharatpur.
The petition accordingly fails and will be dismissed.
Petition dismissed.

summary/full:
The petitioner was a member of an All India Service serving in the State of Rajasthan.
The State Government ordered his trail before the Special Judge of Bharatpur under section 120B/161 of the Indian Penal Code and section 5(1) (a) (d) and section 5(2) of the Prevention of Corruption Act.
He moved the Supreme Court under section 527 of the Code of Criminal Procedure praying for the transfer of his case to another State, on various grounds.
On behalf of the State it was contended that the Supreme Court could not exercise its powers under section 527 of the Code of Criminal Procedure in the matter because section 7(1) of the Prevention of Corruption Act required the offences in question to be tried by a special judge only, and section 7(2) of the Act required the offence to be tried by a Special Judge for the area within which they were committed which condition could never be satisfied if there was a transfer.
HELD : (i) The condition in sub section (1) of section 7 of the Prevention of Corruption Act that the case must be tried by special judge is a sine qua non for the trial of offences in Section 6.
This condition can be satisfied by transferring the case from one special judge to another special Judge.
[684 B] Sub section (2) of section 7 merely distributes work between special judges appointed in a State with reference to territory.
This Provision is on a par with the section of the Code of Criminal Procedure which confer territorial jurisdiction on Sessions Judges and Magistrates.
An order of transfer by the very nature of things must sometimes result in taking the case out of the territory.
[685 D] (ii) The third sub section of section 8 of the Act preserves the application ,of any provision of the Code, of Criminal Procedure if it is not inconsistent with the Act save as provided in the first two sub sections of that section.
Section 527 of the Code therefore remains applicable; if it is not inconsistent with section 7(2) of the Act.
There is no inconsistency between section 527 of the Code and section 7(2) of the Act because the territorial jurisdiction created by the latter operates in a different Sphere and under different circumstances.
Inconsistency can only be found if two pro visions of law apply in identical circumstances, and create contradictions.
Such a situation does not arise when either this Court or the High Court exercises the power of transfer.
Therefore this Court in exercise of its jurisdiction and power under section 527 of the Code can transfer a case from a special judge subordinate to one High Court to another special judge subordinate to another High Court [685 E] Ramchandra Prasad vs State of Bihar, A.I.R. 1961 S.C. 129, referred to, 679 (iii) On merits however the petition in the present case could not succeed.
There was nothing in it which would show that there was any interference direct or indirect with the investigation of the offences alleged against the petitioner or the trial of the case by the special judge.
A general feeling that some persons are hostile to the petitioner is not sufficient.
The Court has further to see whether the apprehension is reasonable.
[686 H]


judgement:
Appeal No.100 of 1953.
Appeal by special leave from the Judgment and Order, dated the 27th November, 1952, the High Court of Judicature, Punjab, Circuit Bench at Delhi, in Civil Writ No. 65 D of 1952 arising out of the 893 Judgment and Order, dated the 11th November, 1952, of the Election Tribunal at Delhi in Election Petition No. 10 of 1952.
N.C. Chatterjee (A. N. Sinha, with him) for the appellant.
S.P. Sinha (R. Patnaik, with him) for the respondent.
January 20., The Judgment of the Court was delivered by MAHAJAN C. J.
This is an appeal by special leave against the decision of the Delhi Election Tribunal, dated the 11th November, 1952, in Election Petition No. 10 of 1952.
The appellant Jagan Nath was elected a member of the Delhi State Legislative Assembly from Constituency No. 25 (Roshanara) of the Delhi State.
The polling in this constituency took place on the 14th January, 1952.
On the 26th April, 1952, which was the last date under the law for the presentation of an election petition, Jaswant Singh (respondent No. 1) presented such a petition before the Secretary of the Election Commission at New Delhi challenging the election of the appellant and contesting the order of the Returning Officer rejecting his nomination paper.
In the petition he impleaded as respondents, Brahma Sarup, Ram Prashad Poddar and the appellant, Jagan Nath, but he omitted to implead, as required by section 82 of the Representation of the People Act, 1951, Baijnath, one of the candidates, whose nomination had been accepted but who had withdrawn his candidature subsequently.
On the 14th July, 1952, the Election Commissioner appointed an Election Tribunal comprising respondents 5 to 7.
This appointment was published in the Gazette of India on the 26th July, 1952, and the election petition after due publication was referred to the tribunal.
On the 26th August, 1952, which was the first date of hearing before the tribunal, the appellant raised a preliminary objection that the omission to implead Baijnath, a duly nominated candidate as a respondent in the petition. was fatal to its 894 maintainability.
The petitioner contended that Baijnath was neither a necessary nor a proper party and that in any event the non joinder of a party.
was not fatal to the petition in view of the provisions of Order 1, rule 9, Civil Procedure Code.
In the alternative, it was claimed that if it was considered that he was a necessary or proper party, permission may be given to the petitioner to implead him.
The tribunal decided the preliminary point in favour of the petitioner and held that the non joinder of Baijnath as a respondent was not fatal to the petition.
On the finding, however, that Baijnath was a proper party to be impleaded in the case, the tribunal directed that he added as a respondent in the petition and notice of the petition be served on him.
In the view of the tribunal Baijnath was not a necessary party in the sense that in his absence no effective decision could be given in the case and that being a proper party, there was no obstacle to his being joined as a respondent even after the expiry of the period of limitation prescribed for making the petition.
The appellant being dissatisfied with this decision, made an application to the Punjab High Court under articles 226 and 227.of the Constitution of India for the issue of a writ of certiorari quashing the order of the tribunal on the ground that it was without jurisdiction and for an order that the election petition be dismissed as there was no valid petition before the Election Tribunal for trial.
This petition was summarily rejected by the High Court on the 27th November, 1952.
On a petition presented to this court under article 136 of the Constitution, special leave was granted by this court.
In this appeal it was contended before us that the Election Tribunal was not a court of general jurisdiction, that it was established by the Representation of the People Act, 1951, for the special purpose of trying election petitions, that its jurisdiction was derived from the statute upon certain specified terms and conditions precedent contained in the statute itself and that it had no general and inherent powers of an 895 existing court and that being so, if the terms and conditions precedent prescribed by the statute were not complied with, it had no jurisdiction to act.
According to the appellant, the scheme of the Act was that no election could be called in question except by an election petition presented in accordance with the provisions of Part VI of the Act (section 80), and it was suggested that unless all the requirements of sections 81, 82, 83 and 117 were complied with, an election could not be questioned and that no subsequent addition or amendment of the petition after the expiry of the 14 days prescribed for presenting a petition was permissible.
It was further contended that the provisions of section 82 were explicit and mandatory and admitted of no exceptions and the petition not being in accordance with the provisions of the law, there was no valid petition which the tribunal could proceed to try.
Lastly, it was contended that the provisions of the Code of Civil Procedure were applicable to the trial of petitions but could not be of assistance in determining whether a petition had been validly presented.
The general rule is well settled that the statutory requirements of election law must be strictly observed and that an election contest is not an action at law or a suit in equity but is a purely statutory proceeding unknown to the common law and that the court possesses no common law power.
It is also well settled that it is a sound principle of natural justice that the success of a candidate who has won at an election should not be lightly interfered with and any petition seeking such interference must strictly conform to the requirements of the law.
None of these propositions however have any application if the special law itself confers authority on a tribunal to proceed with a petition in accordance with certain procedure and when it does not state the consequences of non compliance with certain procedural requirements laid down by it.
It is always to be borne in mind that though the election of a successful candidate is not to be lightly interfered with, one of the essentials of that law is also to safeguard the purity of the election process and also 896 to see that people do not get elected by flagrant breaches of that law or by corrupt practices.
In cases where the election law does not prescribe the consequence, or does not lay down penalty for non compliance with certain procedural requirements of that law, the jurisdiction of the tribunal entrusted with the trial of the case is not affected.
It is in these circumstances necessary to set out the different provisions of the Act relevant to the matter canvassed before us.
Part VI of the Act deals with "Disputes regarding Elections.
" Chapter I of this Part is the definition chapter.
Chapter 11 consists of six sections.
Section 80 provides that no election on shall be called in question except by an election petition presented in accordance with the provisions of this Part.
Section 81 provides that an election petition calling in question any election may be presented on one or more of the grounds specified in Sub sections (1) and (2) of sections 100 and 101 to the Election Commission by any candidate at such election or any elector in such form and within such time but not earlier than the date of publication of the name or names of the returned candidate or candidates at such election under section 67, as may be prescribed; that an election petition shall be deemed to have been presented to the Election Commission_ "(a) when it is delivered to the Secretary to the Commission or to such other officer as may be appointed by the Election Commission in this behalf (i) by the person making the petition, or (ii) by a person authorized in writing in this behalf by the person making the petition ; or (b) when it is sent by registered post and is delivered to the Secretary to the Commission or the officer so appointed.
" Section 82 provides as follows: "A petitioner shall join as respondents to his petition all the candidates who were duly nominated at the election other than himself if he was so nominated." 897 Section 83 states that an election petition shall contain a concise statement of the material facts on which the petitioner relies and shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure for the verification of pleadings.
It further provides that the petition shall be accompanied by a list signed and verified in like manner setting forth full particulars of any corrupt or illegal practice which the petitioner alleges, including as full a statement as possible of the names of the parties alleged to have committed such corrupt or illegal practice and the date and place of the commission of each such practice.
Provision is also made in the section empowering the tribunal to obtain further particulars by allowing an amendment.
Section 84 concerns the relief which a petitioner may claim, and section 85 provides that if the provisions of sections 81, 83 or 117 are not complied with, the Election Commission shall dismiss the petition.
Power is however given to the Commission to condone delay in making the petition for sufficient cause.
Chapter III of Part VI deals with the trial of election petitions.
It consists of 21 sections.
Section 86 provides that if the petition is not dismissed under section 85, the Election Commission shall appoint an election tribunal for the trial of the petition.
Provision, is then made for constituting the ' tribunal and the place where the trial should take place.
Section 90 prescribes the procedure to be followed by the tribunal.
Sub section (2) of section 90 is in these terms : "Subject to the provisions of this Act and of any rules made thereunder, every election petition shall be tried by the tribunal, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908, to the trial of suits.
" Sub section (4) provides that notwithstanding anything contained in section 85, the tribunal may dismiss an election petition which does not comply with the provisions of sections 81, 83 or 117.
It is significant that both the Election Commission and the tribunal have been given powers in express 116 898 terms to dismiss an election petition which does not comply with the requirements of sections 81, 83 or 117, but no such powers are given to dismiss a petition in limine which does not comply with the provisions of section 82.
Such a petition can only be dismissed at the conclusion of the trial and on grounds sufficient to dismiss it (section 98).
Specific provisions have been made to ensure that allegations of corrupt practice etc.
are not lightly or frivolously made by providing that the petition must be.
properly verified and the allegations contained therein stated with a certain amount of definiteness and accuracy and it is an express provision of Part VI itself that the procedure of the tribunal is to be governed by the Code of Civil Procedure and where a petition complies with sections 81, 83 or 117, the Commission is bound to refer the petition to an election tribunal and the tribunal, unless it is of the opinion that the petition is not in accordance with sections 81, 83 or 117, is bound to try it and decide it according to the provisions of law.
Provision has been made in section 90 (1) for any other candidate subject to the provisions of section 119, to have himself impleaded as a party in the case within a prescribed period.
This provision indicates that the array of parties as provided by section 82 is not final and conclusive and that defects can be cured.
Provisions of sections 110, 115 and 116 of Chapter IV of this Part also support this view.
Section,110 provides the procedure for the withdrawal of a petition.
It says that any person who might himself have been a party may within 14 days of the publication of the notice of withdrawal in the official gazette apply to be substituted as a petitioner in the place of the party withdrawing it.
Section 115 provides that such a person can be substituted as a petitioner on the death of the original petitioner while section 116 provides that if a sole respondent dies or gives notice that he does not wish to oppose the petition or any of the respondents dies or gives such notice and there is no other respondent who is appearing in the petition, the tribunal shall 899 cause notice of such event to be published in the official gazette and thereupon any person who might have been a petitioner may within 14 days of such publication apply to be substituted in the place of such respondent and oppose the petition and shall be entitled to continue the proceedings on such terms as the tribunal may think fit.
These provisions suggest that if any proper party is omitted from the lists of respondents, such a defect is not fatal and the tribunal is entitled to deal with it under the provisions of the Code of Civil Procedure, Order I, rules 9, 10 and 13.
Baijnath was a candidate who had withdrawn his candidature and had not contested the election.
By reason of his absence or presence having regard to the grounds on which the petition was based no prejudice was likely to result to the respondent No. I because the main ground on which the petition was based was that the petitioner 's nomination paper had been wrongly rejected.
Baijnath did not claim that he had acquired any substantive rights by reason of the failure of the petitioner to implied him within the period prescribed and there is no question of depriving him of any such rights.
In our opinion, the tribunal rightly disallowed the preliminary objection.
Mr. Chatterjee, the learned counsel for the appellant, drew our attention to certain decisions given by the different election tribunals constituted under the Representation of the People Act, 1951, in support of his contention.
On a careful perusal of the different decisions given by the various election tribunals it appears that there is no uniformity of opinion between them on this point.
Conflicting opinions have been expressed by these tribunals.
It is unnecessary to discuss all these decisions in detail.
It will be sufficient to say.
that we are in entire agreement with those decisions which have held that non compliance with the provisions of section 82 is not fatal to the petition.
The matter has to be determined in accordance with the rules of the Code of Civil Procedure which have Is been made expressly applicable.
Mr. Chatterjee laid emphasis on the decision of the Election Tribunal, Lucknow, presided over by 900 Shri N. section, Lokur in Election Petition No. 287 of 1952 published in the Gazette of India dated 20th December, 1951, Part 11, Section 3, page 1034.
In that case two persons who had been duly nominated as candidates but who had withdrawn their candidature were not impleaded as respondents as required by section 82 of the Representation of the People Act, 1951 It was held that the non joinder was fatal ,to the petition.
It was said that the wording of the Act is peremptory and mandatory and it makes it incumbent on the petitioner to join as respondents all candidates duly nominated and it gives him no option and the failure to do so involves rejection of the petition.
Reliance was placed on certain decisions of Election Tribunals given under the election rules in force under the Government of India Act, 1935, and the decision of another Election Tribunal, Quilon, in Sri Ramchandra Nair vs Sri Ramehandra Das reproduced At page 2396e, Gazette of India Extraordinary, Part I, Section 1, dated the llth of November, 1952.
It was said that unless all the requirements of rules 81, 82 and 83 are complied with the election cannot be questioned.
As regards the omission of section 82 from the provisions of section 85, it was observed that the Election Commission can at once discover whether the provisions of sections 81, 83 and 117 are complied with but the same cannot be said about the requirements of section 82 and that the Election, Commission will have to hold an inquiry as to who were the candidates duly nominated before determining whether all of them had been joined or not, that this burden of inquiry was not thrown on the Commission but it was left for the determination of the tribunal, and hence it was that section 82 was not included in section 85.
Both the reasons given by the tribunal cannot, in our opinion, be sustained.
The provisions of section 82 are in terms similar to the provisions of Order XXXIV, rule I of the Code of Civil Procedure.
Therein it is provided that all persons having an interest either in the mortgage security or in the right of redemption shall be joined as parties to any suit relating to the 901 mortgage.
There is ample authority for the view that this is merely a directory provision and non joinder of any party is not a fatal defect and a decree can be passed so far as the parties actually on record are concerned unless the party omitted is a necessary party in the sense that in his absence no relief could be given at all even as regards parties actually on record.
There is no valid reason for treating the word "shall" in section 82 in a manner different from the same word used in Order XXXIV, rule 1, Civil Procedure Code.
It is one of the rules of construction that a provision like this is not mandatory unless non compliance with it is made penal.
As regards the dictum of the Lucknow Tribunal that no inquiry is required to be made in the case of non compliance with the provisions of sections 81, 83 and 117 but that an inquiry would be necessary to determine whether certain parties were nominated candidates or not, in our opinion it cannot stand scrutiny.
Whether a petition has been presented by a person who has purported to sign it or by someone else or whether an agent who has signed the petition is a duly authorized agent or not are its much matters of inquiry as the question of determination of the names of nominated candidates.
This fact can be easily determined by reference to the Returning Officer.
That this reasoning of the tribunal is not sound is fully demonstrated by a reference to the next case cited by the learned counsel and decided by the same tribunal presided over by Shri N. section Lokur.
In that case the question arose whether the petition was duly verified and whether it was accompanied by all the necessary lists required by section 83 (2).
An elaborate inquiry had to be conducted to ' determine the point whether the petition was typed on blank paper signed by the petitioner or whether it was signed by him or some person authorized on his behalf after it had been typed.
It is thus clear that it is no valid explanation to say that section 82 was omitted from the provisions of section 85 simply on the ground that the Election Commission was absolved from the duty of making elaborate inquiries at the stage when it had to say whether the provisions of sections 81, 83 and 902 117 had been complied with.
From the circumstance that section 82 does not find a place in the provisions of section 85 the conclusion follows that the directions contained in section 82 were not considered to be of such a character as to involve the dismissal of a petition in limine and that the matter was such as could be dealt with by the tribunal under the provisions of the Code of Civil Procedure specifically made applicable to the trial of election petitions.
The Bombay Tribunal, presided over by Shri B. D. Nandkarni has taken a contrary view in Election Petition No. 72 of 1952, page 286, Gazette of India Extraordinary, dated the 5th February, 1953.
The issue in this case was whether Shri T. C. Patil, was a necessary party and whether by the omission to implead him the whole petition was bad.
The tribunal held that the defect was not fatal.
In another case, Petition No. 113 of 1952, decided on 28th July, 1953, the majority of the Bombay Tribunal, decided otherwise.
The view of the majority was that the mandatory nature of the provisions of section 82 itself contains within it the consequence of dismissal for non compliance with its provisions and a separate provision for the dismissal of the petition for non compliance with its provisions was not necessary and it would have been superfluous.
These observations run counter to the scheme of the Act itself as envisaged by section 85.
The provisions of sections 81, 83 and 117 are also mandatory and still in section 85 it is provided in specific terms that the Election Commission shall dismiss the petition if it is not in accordance with the provisions of those sections.
The, tribunal is given a similar power by section 90 (4).
The member of the tribunal who dissented from the majority view gave cogent and sound reasons for holding that non joinder of a duly nominated candidate who has withdrawn was not necessarily fatal to the petition.
In Election Petition No. 83 of 1952 decided by the Election Tribunal presided over by Shri B. C. Vakil, the tribunal took the view that such a defect was fatal.
A Division Bench of the Bombay High Court in Special 903 Civil Appeal No. 2017 of 1952, decided on the 19th of December, 1952, allowed even a defective verification to be amended.
It is not necessary to express any final opinion on matters specifically covered by sections 81, 83 and 117 and dealt with by section 85 of the Act but at the same time it is not possible to accept the view 'that in spite of the provisions of section 85 failure to comply strictly with the provisions of section 82 has, the same consequences as are contained in section 85.
In our opinion the determination of the question whether the parties to the petition have been properly impleaded is a matter not for the Election Commission but for the tribunal.
Various provisions of the Act referred to above show that the election petition does not necessarily abate or fail by reason of the death of the petitioner or any of the respondents or by their ceasing to take any interest in the trial of the petition once that petition has been referred to the tribunal.
On the other hand, any person who could be a petitioner can continue the petition in spite of the death of either the petitioner or the respondents to the petition and on the original parties failing to prosecute it.
These provisions have been made to ensure that the election process on which the democratic system of Government is based is not abused or misused by any candidate and that inquiry is not shut out by collusion between persons made parties to the petition or by their respective deaths.
It is therefore clear that the provisions of the law relating to the impleading of parties are not necessarily fatal and can be cured.
It is for the tribunal to determine the matter as and when it arises in accordance with the provisions of the Code of Civil Procedure.
For the reasons given above we are of the opinion that the decisions of the tribunal and of the High Court in this case were right.
We accordingly dismiss the appeal with costs.
Appeal dismissed.
Agent for respondent No. K. L. Mehta.

dataset_name: IN-Abs

summary/full:
Held, (i) that non compliance with the provisions of section 82 of the Representation of the People Act, 1951 (XLIII of 1951), and the omission of a proper party from the list of respondents is not fatal and the tribunal is entitled to deal with the matter in accordance with the rules of the Code of Civil Procedure which have been made expressly applicable; (ii) that it is one of the rules of construction that a provision similar to the one in section 82 is not mandatory unless noncompliance with it is made penal.
Order XXXIV, r. 1, of the Code of Civil Procedure, referred to.
General principles governing the decision of election peti tions discussed.


judgement:
Civil Appeal No. 871 of 1964.
Appeal from the judgment and order dated January 16, 17, 1961 of the Gujarat High Court in Special Civil Application No. 233 of 1960.
N. D. Karkhanis, T. A. Ramachandran, 0.
C. Mathur, Ravinder Narain and J. B. Dadachanii, for the appellant.
A. V. Viswanatha Sastri, R. Ganapathy Iyer, B. R. G. K. A char and R. N. Sachthey, for the respondents.
The Judgment of the Court was delivered by Shah, J.
The appellants Company registered under the Indian Companies Act, 1913 was assessed in the assessment years 1948 49 to 1953 54 in respect of the profits earned in its business, and was allowed rebate under the appropriate provisions contained in the Schedules to the relevant Finance Acts on the undistributed profits of the previous years.
On December 31, 1956 at an annual general meeting of the shareholders the Company declared an aggregate sum of Rs. 2,15,232/ as dividend for the year ending December 31, 1956.
Thereafter a special resolution was passed for voluntary winding up of the Company with effect from October 1, 1957, and for appointing a liquidator to wind up the affairs of the Company.
On October 20 & 21, 1957 the liquidator distributed to the shareholders thereafter on February 21 & 22, 1958; July 27, 1959 the liquidator distributed to the shareholders.
In respect of each liquidator issued an "income tax refund that the amount was distributed out of accumulated profits of earlier years.
The Income tax Officer, Special Investigation Circle B, Ahmedabad in exercise of the power under section 35(10) of the Indian Income tax Act, 1922, passed an order withdrawing the rebate, 734 granted in respect of each of the six assessment years 1948 49 to 1953 54 and demanded payment of tax on the amount of the rebate.
The appellant then applied to the High Court of Bombay for writs quashing the orders of the Income tax Officer and the notice of demand and directing the Income tax Officer to withdraw and cancel the order and notice of demand.
The petition was dismissed by the High Court.
With certificate granted by the High Court, this appeal has been preferred.
Two questions are raised for determination in this appeal (1) Whether section 35(10) authorises the Income tax Officer to bring to tax rebate granted in assessment years commencing prior to April 1, 1956; and (2) whether distribution by the liquidator of accumulated profits in the previous years could be regarded as declaration of dividend within the meaning of section 35(10) so as to attract the applicability of the provisions enabling withdrawal of rebate and demand for tax.
The first question is concluded by a recent judgment of this Court in Ahmedabad Manufacturing and Calico Printing Co. Ltd. vs section G. Mehta, Income tax Officer and Another(1).
In that case this Court held that section 35(10) applied even though dividend was declared before April 1, 1956.
Counsel for the Company urged that in the Ahmedabad Manufacturing and Calico Printing Co. 's case it was held that power to withdraw rebate granted in the year before April 1, 1952 was not exercisable by the Incometax Officer under section 35(10) and consistently with that view withdrawal of rebate granted in the years ending on and before March 31, 1952 was unauthorised.
In Ahmedabad Manufacturing and Calico Printing Co. 's case(1) declaration of dividend by the Com pany was made on April 20, 1953.
The financial year in which the amount on which rebate of income tax was allowed was availed of by the Company for declaring dividends was 1953 54, and within four years from the end of that year an order calling upon the Company to show cause why action should not be taken under section 35(10) to recall the proportionate part of the rebate was issued.
It was said by Hidayatullah, J. : "Since the power commenced on April 1, 1956, the utmost reach of the Income tax Officer would be the end of the assessment year 1952.
Any declaration of (1) [1963] Supp. 2 S.C.R. 92.
735 dividend after 1st day of April, 1952, out of accumulated profits of any of the years in which rebate was earned would be within the time for the recall of any rebate.
But a declaration prior to April 1, 1952, would be beyond the power of the Income tax Officer to recall." Power to withdraw rebate was in that case held exercisable within four years from the end of the financial year in which the amount of rebate was availed of : it was not held that the power was exercisable in respect of rebate granted only in respect of four years before April, 1956.
The argument raised by counsel importing a limitation contrary to the plain words of the statute must therefore be rejected.
Sub section (10) of section 35 was inserted in the Income tax Act by section 19 of the Finance Act, 19@6, with effect from April 1, 1956.
It provides "Where, in any of the assessments for the years beginning on the 1st day of April of the years 1948 to 1955 inclusive, a rebate of income tax was allowed to a company on a part of its total income under clause (i) of the proviso to Paragraph B of Part I of the relevant Schedules to the Finance Acts specifying the rates of tax for the relevant year, and subsequently the amount on which the rebate of income tax was allowed as aforesaid is availed of by the company, wholly or partly, for declaring dividends in any year, the amount or that part of the amount availed of as aforesaid, as the case may be, shall, by reason of the rebate of incometax allowed to the company and to the extent to which it has not actually been subjected to an additional income tax in accordance with the provisions of clause (ii) of the proviso to Paragraph B of Part I of the Schedules to the Finance Acts above referred to,.
be deemed to have been made the subject of incorrect relief under this Act, and the Income tax Officer shall recompute the tax payable by the company by reducing the rebate originally allowed, as if the recomputation is a rectification of a mistake apparent from the record within the meaning of this section and the provisions of sub section (1) shall apply accordingly, the period of four years specified therein being reckoned from the end of the financial year in which the amount on which rebate of 736 income tax was allowed as aforesaid was availed of by the company wholly or partly for declaring dividends.
" It is urged by counsel for the Company that power under sub section (10) of section 35 cannot be exercised because distribution of accumulated profits by the liquidator is not distribution by the Company.
The argument is wholly without substance.
On the passing of a special resolution by the Company that it be wound up voluntarily under the Companies Act 1 of 1956, the Company does not stand dissolved.
That is so expressly provided by section 487, of the Companies Act.
A Company which has resolved to be voluntarily wound up may be dissolved in the manner provided by section 497(5) : till then the Company has corporate existence and corporate powers.
The property of the Company does not vest in the liquidator : it continues to remain vested in the Company.
On the appointment of a liquidator, all the powers of the Board of directors and of the managing or whole time directors, managing agents, secretaries and treasurers cease (section 491), and the liquidator may exercise the powers mentioned in section 512, including the power to do such things as may be necessary for winding up the affairs of the Company and distributing its assets.
The liquidator appointed in a members ' winding up is merely an agent of the Company to administer the property of the Company for purposes prescribed by the statute.
In distributing the assets including accumulated profits the liquidator acts merely as an agent or administrator for and on behalf of the Company.
It is then urged that on the commencement of winding up, distinction between the capital and accumulated profits of the Company disappears, and what remains in the hands of the liquidator are the assets of the Company, and distributions made by the liquidator are distributions of capital, regardless of the source from which the funds are distributed is capital or accumulated profits.
In distributing the surplus assets in his hands, the liquidator is therefore not "declaring dividends" within the meaning of section 35(10).
In support of this contention, reliance was placed upon Inland Revenue Commissioners vs George Burrell(1).
The Court in that case held that on the winding up of a limited company the undivided profits of the past year and the year in which winding up occurred were only assets of the company and on distribution amongst the shareholders supertax was not payable on the undivided profits as income.
(1) 737 Under the , accumulated profits of the Company at the commencement of the winding up of the Company undoubtedly come into the hands of the liquidator as assets for the purpose of satisfying liability of the Company and for distribution among the shareholders.
But the rule in Burrell 's cave(1) since the amendment of the definition of "dividend" in section 2(6A) by the Finance Act, 1956, no longer applies, when the liability to assessment of income tax in respect of amounts distributed out of accumulated profits by a liquidator in a winding up falls to be determined.
The Parliament had devised by the Indian Income tax (Amendment) Act 7 of 1939, a special inclusive definition for the Income tax Act, 1922 of "dividend" in section 2(6A).
Being an inclusive definition, the expression "dividend" means dividend as ordinarily understood under the and also the heads of payment or distribution specified therein.
Clause (c) as originally enacted, included distributions made to the shareholders of a Company out of accumulated profits on the liquidation of the Company.
This was clearly an attempt to supersede the rule in Burrell 's case(1).
It was pointed out by this Court in Dhandhania Kedia & Co. vs Commissioner of Income tax(2) that section 2 (6A) (c) was enacted to remove the anomaly which was created by the judgment in Burrell 's case(1), and to assimilate the distribution of accumulated profits by a liquidator to a similar distribution by a Company which is working.
But the language of the clause and the proviso thereto included only those accumulated profits which had not been capitalized, and which arose during the six previous years preceding the date of commencement of the year of account in which the liquidation commenced.
By the Finance Act, 1955, the proviso to cl.
(c) was omitted : thereby accumulated profits whether capitalized or not and without any restriction as to time were brought within the definition.
By the Finance Act, 1956, cl.
(c) was recast as follows : " any distribution made to the shareholders of a company on its liquidation, to the extent to which the distribution is attributable to the accumulated profits of the company immediately before its liquidation, whether capitalized or not.
" Amendment to cl.
(c) in section 2(6A) was made and section 35(10) was inserted in the Income tax Act simultaneously by the Finance Act, 1956.
It would be reasonable to regard the provisions of section 35(10) and amended cl.
(c) of sub section
(6A) of section 2 as part of a (1) L3Sup.
CI/66 18 (2) 738 single scheme to declare distribution of accumulated profits, capitalized or not, as dividends, and to bring the rebate granted on undistributed profits to tax if availed of by the company or by the liquidator of a company for distributing dividends.
Counsel for the Company contended that the amount distributed out of accumulated profits by the liquidator is not dividend in the hands of the Company.
For this distinction again there is no warrant.
Distribution of accumulated profits by a Company not subject to winding up is distribution of dividend by virtue of section 2(6A) (a), and distribution of accumulated profits in the course of liquidation is dividend by virtue of section 2(6A)(c).
It is true that the definition of "dividend" in section 2(6A)(c) win apply only if there is nothing repugnant in the subject or context in which the expression "dividend" occurs in section 35(10), but there is nothing in section 35(10) which suggests that the expression "dividend" was to have a meaning different from the meaning assigned to it by the interpretation clause.
It was urged that assuming that accumulated profits of a Company distributed by the liquidator may be regarded as dividends, power under section 35(10) cannot be exercised in respect of those profits, because the liquidator is not in distributing the profits "declaring dividends".
But the assumption underlying the argument that the provides that dividends may be deemed to be declared only if certain mandatory provisions are complied with is without substance.
By section 205 of the Indian (before it was amended in 1960) it was provided that no dividend shall be declared or paid except out of the profits of the company or out of moneys provided by the Central or a State Government for the payment of the dividend in pursuance of a guarantee given by such Government.
The Company in the present case was registered under the Indian Companies Act, 1913.
The Articles of Association of the Company are not before us, but the Articles relating to distribution of dividend being under section 17(2) of the Companies Act, 1913, obligatory, articles 95, 96 and 97 in Table A of Act 7 of 1913 applied.
By article 95 it was provided that a company in general meeting may declare divi dends, but no dividends shall exceed the amount recommended.
But to the distribution of interim dividends, the condition that it must be declared in general meeting of the Company did not apply, and such interim dividends as appeared to the directors to be justified by the profits of the company could be distributed (article 96).
The only other relevant condition was in article 97 that no dividend shall be paid otherwise than out of profits of the year or any other undistributed profits.
739 The liquidator of the appellant company did from time to time distribute accumulated profits, and within the meaning of section 2(6A)(c) read with the provisions of the Companies Act, they were distribution of interim dividends.
It is true that power under section 35(10) may be exercised if accumulated profits are availed of by the Company "for declaring dividends in any year", but since the Companies Act does not in the matter of distribution of interim dividends set up any special machinery, nor impose any special condition before power in that behalf may be exercised, no artificial meaning can be attached to the word "declaring dividends".
Distribution of accumulated profits by the liquidator together with the income tax refund certificate in the course of voluntary winding up may therefore, for the purpose of section 2(6A)(c), be regarded as declaration of dividend.
The appeal therefore fails and is dismissed with costs.
Appeal dismissed.

summary/full:
The appellant company was assessed to tax in the assessment years 1948 49, to 1953 54, in respect of its profits, and was allowed rebate on the undistributed profits.
It was resolved to voluntarily wind up the company with effect from October 1, 1957.
The liquidator, during the years 1957 to 1959 distributed, from time to time, the accumulated profits to the shareholders and also issued income tax refund certificates.
The Income tax Officer, under section 35(10) of the Income Tax Act, 1922, withdrew the rebate granted in respect of each of the assessment years 1948 49 to 1953 54 and demanded payment of tax.
The company applied for a writ quashing the order, but the High Court dismissed the petition.
In appeal to this Court, the company contended that : (i) Section 35(10) did not authorise the Income tax Officer to bring to tax the amount on which rebate tax was granted in assessment years commencing prior to 1st April 1956, and (ii) the distribution by the liquidator of accumulated profits could not be regarded as declaration of dividend by the company within the meaning of section 35(10).
HELD : (i) The power to withdraw rebate was exercisable within 4 years from the end of the financial year in which the amount on which rebate was allowed was availed of by the company for declaring dividends.
1735 B C] Ahmedabad Manufacturing and Calico Printing Co. Ltd. vs S.G. Mehta, [1963] Supp. 2 S.C.R. 92, followed, (ii) Distribution of accumulated profits by the liquidator together with the income tax refund certificates, in the course of voluntary winding up, can be regarded as declaration of dividend, so as to attract the applicability of provisions enabling the withdrawal of rebate and demand for tax.
[739 C] On the passing of a resolution for voluntary winding up the company does not stand dissolved and its property does not vest in the liquidator.
lit distributing the assets, including accumulated profits, the liquidator acts merely as an agent or administrator for and on behalf of the company.
Therefore, distribution by the liquidator is distribution by the company.
[736 B C, E] There is nothing in section 35(10) which suggests that the expression dividend was to have a meaning different from the meaning assigned to it by section 2(6A) in the interpretation clause.
By the omission of the proviso to section 2(6A)(c) by the Finance Act, 1955, distribution of accumulated profits, whether capitalised or not and without any restriction as to time, was brought within the definition of dividend.
The provisions of sections 35(10) and 2(6A)(c) are part of a single scheme to declare distribution of accumulated profits, capitalized or not, as dividends, and 733 to bring the undistributed profits on which rebate was granted to tax, if availed of by the liquidator of the company for distributing dividends.
[737 F, H; 738C D] Power under section 35(10) may be exercised if accumulated profits are availed of by the company "for declaring dividends in any year", that is, after following the procedure in article 95 of Table A of the Companies Act, 1913, under which the assessee was registered.
But, the distribution made by the liquidator, was a distribution of interim dividend, and, in the matter of distribution of interim dividend, the Companies Act does not set up any special machinery nor does it impose any special condition before power in that behalf may be exercised.
[739 A C]


judgement:
ON: Criminal Appeals Nos.165 168 of 1962.
Appeals by special leave from the judgment and order dated August 25, 1962 of the Patna High Court in Criminal Revisions Nos.527 to 530 of 1962.
Nuruddin Ahmad and U. P. Singh, for the appellants.
section P. Varma and R. N. Sachthey, for the respondents.
The Judgment of the Court was delivered by Mudholkar, J.
This judgment will also govern Crl.No. 166 of 1962, 167 of 1962 and 168 of 1962.
A common question arises in these appeals from a judgment of the Patna High Court dismissing four revision applications preferred before it by four sets of appellants in the appeals before us.
Counsel on both the sides agree that since the relevant facts of all the proceedings are similar and the question of law arising from them is the same it will be sufficient to refer to the facts of Case No. TR 320/60.
Four informations were lodged at the police station, Ghora Saha on April 14, 1960 by different persons against the different appellants in these cases and a similar information was lodged against some of the appellants by one Mali Ram.
In all these cases the allegations made by the informants were that each set of the accused persons armed with deadly weapons went to the shops of the various informants, demanded from them large sums of money and threatened them with death if they failed to pay the amounts demanded by them.
The informations also stated that 742 some of these persons paid part of the money and were given time to pay the balance while some agreed to pay the amounts demanded.
Upon informations given by these persons offences under section 392, Indian Penal Code, were registered by the station officer and after investigation five challans were lodged by him, in the court of Magistrate.
First Class at Motihari.
One of the cases ended in an acquittal but we have not been informed of the date of the judgment in that case.
In the other four cases trial had come to a close in that all the prosecution witnesses and the defence witnesses had been examined and the cases had been closed for judgment.
In the case against the appellants in Crl. A. 165 of 1962 the challan was presented on October 27, 1960.
The order sheet of that date reads as follows: Date of order Order with the Office action section No. or proceeding signature of taken with the Court date 1.27 10 1960 All the 4 accused are present Heard both sides.
It is argued on behalf of the prosecution that it is a fit case for adopting procedure under Chapter XVIII Cr. P. C. and also that the entire occurrence relates to offences committed on 4 dates so that all of them cannot be dealt with in a single case.
Discussed law point "Charge u/s 302, I.P.C. framed against accused Thakur Ram and Jagarnath Pd. and explained to them.
They plead not guilty.
This case will constitute an independent case.
As for the other parts of the alleged occurrence accused Jagarnath, Kamal Ram and Bansi Rain are charged separately u/s 384, I.P.C. and further accused Thakur Ram u/s 384/109, I.P.C. and explained to the respective accused.
They plead not guilty.
These charges relating to three incidents on 3 dates will constitute a separate single case.
Start separate order sheet for both Summons P.W. for 26 10 60 and 27 11 60.Accused as before.
Sd/ O. Nath".
The trial dragged on for nearly 15 months and then the prosecution made an application to the court for framing a charge 743 under section 386 or section 387, Indian Penal Code and for committing the case to a court of Sessions.
This was disposed of by the learned Magistrate on January 25, 1962.
The relevant portion of his order sheet of that date reads thus "Accused absent.
A petition for their representation u/s 540 A, Cr P.C. is filed.
Allowed.
No reference book is produced.
Persued the record.
The prosecution has pressed to refer the case to the Court of Sessions u/s 386 or 387 I.P.C.
On close scrutiny I find that the robbery defined inside 390 I.P.C. fully cover the ingredients pointed out and asked by the prosecution side.
The case has entered in the defence stage.
This point was not introduced ever before.
The charge was framed u/s 392, I.P.C. after hearing the parties.
Although it may be referred to the superior court at any stage, I find no reason to do so.
Put up on 28 2 62.
All accused to appear with D.Ws without fail.
Accused as before.
" On February 28, 1962 the prosecution moved a petition for stay of proceedings on the ground that it wanted to prefer an application for revision of the order of January 25, 1962.
Stay was refused and the case was proceeded with.
On March 17, 1962 the defence case was closed and the case was fixed for March 29, 1962 for arguments.
On that date a second application was made for committing the case to a court of Sessions.
It would appear from the order sheet of March 29, 1962 that the Magistrate heard the parties and ordered the case to be put up on the next day, that is March 30, 1962.
On this day the Magistrate passed an order to the following effect "30 3 62 All the 2 accused persons are present.
Having carefully gone through the law points and section 236 Cr.P.C. I do not find that it is a case exclusively coming u/s 386 or 387 I.P.C. Hence the prosecution prayer is rejected."
Immediately thereafter a revision application was preferred, not by the prosecution, but by Sagarmal, an informant in one of the other three cases.
The Sessions Judge, Champaran, after briefly reciting the facts and reasons on which the order of the trying Magistrate was founded, disposed of the revision application in the following words: .lm15 "The cases are of very serious nature and the framing of charges under sections 386 or 387, I.P.C. can 744 not be ruled out altogether.
Consequently, I direct that each of these cases should be tried by a Court of Session.
The learned Magistrate will commit the accused persons for trial accordingly.
The applications are thus allowed.
" An application for revision was preferred by the appellants before the High Court and the main ground urged on their behalf was that the Sessions Judge had no jurisdiction to pass an order for commitment as there was no order of discharge by the Magistrate.
There is conflict of authority on the question whether under section 437, Cr.P.C. a Sessions Judge can, in the absence of an express order of discharge, direct commitment of a case to it while the trial is proceeding before a Magistrate in respect of offences not exclusively triable by a Court of Sessions.
After referring to some decisions and relying upon two decisions of the Allahabad High Court the learned Judge who disposed of the revision application observed as follows "As I have already indicated, in the instant cases, the trial Magistrate, after hearing the parties, refused to frame a charge for the major offence under section 386 or section 387 of the Indian Penal Code.
The refusal by the Magistrate to frame a charge under section 386 or 387 of the Indian Penal Code was a final order and it amounted to an order of discharge of the accused of the offence under those sections.
That being the position, the learned Sessions Judge had full jurisdiction to order for commitment."
The learned Judge further observed "Without expressing any opinion on the merits of the four cases, I would state, that, on the materials on record, the Sessions Judge was not unjustified in passing the impugned order for commitment of the accused in the four cases.
The order of the Magistrate refusing to frame a charge under section 386 or section 387 of the Indian Penal Code, which amounted to an order of the implied discharge of the accused, was improper in all the four cases." and dismissed the revision applications.
Am application was made for a certificate of fitness to appeal to this Court.
That was rejected and the appellants have come here by special leave.
745 The ambit of the powers of the Sessions Judge under section 437, Cr.P.C. has been considered by a Full Bench of the Allahabad High Court in Nahar Singh vs State(1).
In that case it was held that the powers conferred by that section are exercisable only in a case where a Magistrate by an express order discharges an accused person in respect of an offence exclusively triable by a court of Sessions.
The learned Judges constituting the Full Bench have taken the view that in the light of certain provisions of the Code to which they adverted, the failure of or refusal by a Magistrate to commit an accused person for trial by a court of Sessions does not amount to an implied discharge of the accused person so as to attract the power of the Sessions Judge under section 437, Cr.P.C. to direct the Magistrate to commit the accused person for trial by a court of Sessions on the ground that the offence is exclusively triable by a Court of Sessions.
The Full Bench decision has been followed in Sri Dulap Singh & ors.vs State through Sri Harnandan Singh(2).
Before us reliance is also placed on behalf of the appellants on the decision in Yunus Shaikh vs The State(3).
That decision, however, is of little assistance to them because the ground on which the High Court set aside the order of the Sessions Judge is not that he had no jurisdiction to make it under section 437, Cr.P.C. but that the action of the Magistrate in not framing a charge under section 366 of the Indian Penal Code but framing a charge only under section 498, T.P.C. did not, in the light of the material before him, amount to an improper discharge of the accused in respect of an offence triable by a Court of Sessions.
The view taken by the Allahabad High Court has been accepted as correct in Sambhu Charan Mandal vs The State(4 ) .
On the other hand a Full Bench of the Madras High Court has held in in re Nalla Baligadu(5) that where under section 209(1) a Magistrate finds that there are not sufficient grounds for committing the accused for trial and directs such person to be tried before himself or some other Magistrate, the revisional powers under section 437, Cr.P.C. can be exercised before the conclusion of the trial before such Magistrate.
The learned Judges expressly dissented from the view taken by the Full Bench of the, Allahabad High Court.
This decision has been followed in, Rambalam Pd.Singh vs State of Bihar(6).
Other decisions which take the same view as the Madras High Court are : Krishnareddi (1) I.L.R. [1952] 2 All. 152.(3) A.I.R. 1953 Cal.(5) A.I.R. 1953 Mad. 801.(2) A.I.R. 1954 All.(4) (6) A.I.R. 1960 Patna 507.746 v.Subbamma(1); Shambhooram vs Emperor(2); Sultan Ali vs Emperor( '); and in re Valluru Narayana Reddy & ors.(4 ) .
In order to decide the question which has been raised before us it would be desirable to bear in mind the relevant provisions of the Code of Criminal Procedure.
Section 207 provides that in every inquiry before a Magistrate where the case is triable exclusively by a Court of Sessions or High Court, or, which in the opinion of the Magistrate, ought to be tried by such Court, the Magistrate must in any proceeding instituted on a police report, follow the procedure specified in section 207 A. Under section 207 A the Magistrate, after perusing the police report forwarded under section 173, has to fix a date for hearing and require the production of the accused on that date.
He has also the power to compel the attendance of such witnesses or the production of any document or thing on that date if an application is made in that behalf by the officer conducting the prosecution.
On the date of hearing the Magistrate, after satisfying himself that copies of the documents referred to in section 173 have been furnished, has to proceed to take the evidence, of such persons, if any, as are produced as witnesses to the actual commission of the offence.
After the examination of those witnesses and after their cross examination by the accused the Magistrate may, if he thinks it necessary so to do in the interest of justice, take the evidence of any one or more of the other witnesses for the prosecution.
He has then to examine the accused for the purpose of enabling him to explain the circumstances appearing in the evidence against him and hear both the proseeution as well as the accused.
If at that stage he is of opinion that no round for committing the accused for trial exists, the Magistrate can, after recording his reasons, discharge the accused.
If, however, it appears to the Magistrate that such person should be tried by himself or some other Magistrate he must proceed accordingly.
This contingency will arise if the Magistrate forms an opinion that no case exclusively triable by a Court of Sessions is disclosed but a less serious offence which it is within the competence of the Magistrate to try is disclosed.
In that case he has to proceed to try the accused himself or send him for trial before another Magistrate.
Where the Magistrate is of opinion that the accused should be committed for trial he has to frame a charge and declare with what offence the accused should be charged.
With the remaining provisions of s, 207 A we are not concerned.
It will thus be seen that where the police report suggests the commission of an offence which is exclusively triable by a Court (1) I.L.R. (3) A.I.R. 1934 Lahore 164.(2) A.I.R. 1935 Sind 221.(4) A.I.R. 1955 Andhra 48.747 of Sessions, the Magistrate can nevertheless proceed to try the accused for an offence which is triable by him if he is of the view that no offence exclusively triable by a Court of Sessions is disclosed.
Similarly, even in a case where an offence is triable both by a Magistrate and a Court of Sessions, the Magistrate is of the view that the circumstances do not warrant a trial by a Court of Sessions he can proceed with the trial of the accused for that offence himself.
Section 347 which occurs in chapter XXIV headed "General provisions as to Inquiries and Trials" empowers a Magistrate to commit a person for trial by a Court of Sessions if in the course of the trial before him and before signing the judgment it appears to him at any stage of the proceeding that the case ought to be so tried.
These provisions would thus indicate that an express order of discharge is contemplated only in a case where a Magistrate comes to the conclusion that the act alleged against the accused does not amount to any offence at all and, therefore, no question of trying him either himself or by any other court arises.
They also show that where an accused person is being tried before a Magistrate in respect of an offence triable by that Magistrate it appears to the Magistrate that the act of the accused amounts to an offence which is triable either exclusively or concurrently by a Court of Sessions he has the power to order his committal.
This power, however, has to be exercised only before signing the judgment.
It cannot obviously be exercised thereafter because of the provisions of section 403(1) which bar the trial of the person again not only for the same offence but also for any other offence based on the same facts.
It would follow from this that where on a certain state of facts the accused is alleged by the prosecution to have committee an offence exclusively triable by a Court of Sessions but the Magistrate is of the opinion that the offence disclosed is only an offence which he is himself competent to try and either acquits or convicts him there is an end of the matter in so far as the very set of facts are concerned.
The facts may disclose really a very grave offence such as, say, one under section 302, I.P.C. but the Magistrate thinks that the offence falls under section 304 A which he can try and after trying the accused either convicts or acquits him.
In either case the result would be that the appropriate court will be prevented from trying the accused for the grave offence which those very facts disclose.
It is to obviate such a consequence and to prevent inferior courts from clutching at jurisdiction that the provisions of section 437, Cr.P.C. have been enacted.
To say that they can be availed of only where an express order of discharge is made by a Magistrate despite the wide language used in section 437 would have 748 the result of rendering those provisions inapplicable to the very class of cases for which they were intended.
When a case is brought before a Magistrate in respect of an offence exclusively or appropriately triable by a Court of Sessions what the Magistrate has to be satisfied about is whether the material placed before him makes out an offence which can be tried only by the Court of Sessions or can be appropriately tried by that Court or whether it makes out an offence which he can try or whether it does not make out any offence at all.
In Ramgopal Ganpatrai vs State of Bombay(1) this Court has pointed out : "In each case, therefore the Magistrate holding the preliminary inquiry, has to be satisfied that a prima facie case is made out against the accused by the evidence of witnesses entitled to a reasonable degree of credit and unless he is so satisfied, he is not to commit." It has, however, also to be borne in mind that the ultimate duty of weighing the evidence is cast on the court which has the jurisdiction to try an accused person.
Thus, where two views are possible about the evidence in a case before the Magistrate, it would not be for him to evaluate the evidence and strike a balance before deciding whether or not to commit the case to a Court of Sessions.
If, instead of committing the case to a Court of Sessions, he proceeds to try the accused upon the view that the evidence found acceptable by him only a minor offence is made out for which no commitment is required he would obviously be making an encroachment on the jurisdiction of the appropriate court.
This may lead to miscarriage of justice and the only way to prevent it would be by a superior court stepping in and exercising its revisional jurisdiction under section 437 Cr.P.C.
There is nothing in the language of section 437 from which it could be said that this power is not exercisable during the pendency of a trial before a Magistrate or that this power can be exercised only where the Magistrate has made an express order of discharge.
Express orders of discharge are not required to be passed by the Court in cases where, upon the same facts, it is possible to say that though no offence exclusively or appropriately triable by a Court of Sessions Judge is made out, an offence triable by a Magistrate is nevertheless made out.
One of the reasons given by the Allahabad High Court in support of the view taken by it is that a Magistrate has power even during the course of the trial to commit the accused to a Court of Sessions and that to imply a discharge from his omission to commit or refusal to commit (1) [1958] S.C.R.618.749 would not be consistent with the existence of the Magistrate 's power to order commitment at any time.
That does not, however, seem to be a good enough ground for coming to this conclusion.
The power to commit at any stage is exercisable by virtue of the express provisions of section 347 or section 236 and a previous discharge of an accused from a case triable by a Court of Sessions would not render the power unexercisable thereafter.
Moreover, even if an express order of discharge is made by a Magistrate in respect of an offence exclusively triable by a Court of Sessions but a trial on the same facts for a minor offence is proceeded with the Magistrate has undoubtedly power to order his commitment in respect of the very offence regarding which, he has passed an order of discharge provided of course the material before him justifies such a course.
There is nothing in section 347 which precludes him from doing this.
It will, therefore, be not right to say that the power conferred by section 437 is exercisable only in respect of express orders of discharge.
In this context it will be relevant to quote the following passage from the judgment of the Full Bench of the Madras High Court in Krishna Reddy 's case(1) : "I do not think that the order of the Sessions Judge was one which he had no jurisdiction to make.
In my view the decision of the Magistrate must be taken to be not only one of acquittal of an offence punishable under section 379, Indian Penal Code, but one of discharge so far as the alleged offence under section 477, Indian Penal Code is concerned.
The complaint against the accused was that he committed an offence punishable under section 477, Indian Penal Code.
Such offence is triable exclusively by the Court of Sessions.
The Magistrate could neither acquit nor convict him of such offence.
He was bound either to commit him to the Sessions Court or to discharge him.
He did not commit him.
The only alternative was to discharge him, and that, I take it, is what the Magistrate really did do.
It is not suggested that the charge under section 477 is still pending before the Magistrate.
It has been disposed of, and the only question is as to what the disposal has been.
It seems to me that the accused has been discharged so far as the charge under section 477 is concerned.
The Magistrate 's order, if stated fully,should have been 'I discharge him as regards the offence punishable under section 477, and I acquit him as regards the offence punishable under section 379 (1) L.L.R. 750
We agree and are, therefore, of the view that the High Court was right in holding that the Sessions Judge had jurisdiction to make an order directing the Magistrate to commit the case for trial by a Court of Sessions.
The provisions of section 437, however, do not make it obligatory upon a Sessions Judge or a District Magistrate to order commitment in every case where an offence is exclusively triable by a Court of Sessions.
The law gives a discretion to the revising authority and that discretion has to be exercised judicially.
One of the factors which has to be considered in this case is whether the intervention of the revising authority was sought by the prosecution at an early stage.
It would be seen that an attempt to have the case committed failed right in the beginning and was repeated not earlier than 15 months from that date.
The second attempt also failed.
Instead of filing an application for revision against the order of the Magistrate refusing to pass an order of commitment the prosecution chose to make a second application upon the same facts.
It may be that successive applications for such a purpose are not barred but where a later application is based on the same facts as the earlier one the Magistrate would be justified in refusing it.
Where the Magistrate has acted in this way the revisional court ought not to with propriety interfere unless there are strong grounds to justify interference.
While rejecting the application on January 25, 1962 the ground given by the learned Judge was that the case had already entered the defence stage and the attempt to have the committal was very belated.
Matters had advanced still further when a third attempt failed on March 30, 1962.
By that date not only had the defence been closed and arguments heard, but the case was actually closed for judgment.
It would be a terrible harassment to the appellants now to be called upon to face a fresh trial right from the beginning which would certainly be the result if the Magistrate were to commit the appellants for trial by a Court of Sessions now.
It is further noteworthy that after the last attempt failed it was not the prosecution which went up in revision before the Sessions Judge but the informants and, as pointed out earlier, in the matter concerning the appellants before us it was not even the informant Shyam Lall but one Sagarmal, the informant in another case who preferred a revision application.
In a case which has proceeded on a police report a private party has really no locus standi.
No doubt, the terms of section 435 under which the jurisdiction of the learned Sessions Judge was invoked are very wide and he could even have taken up the matter suo motu.
It would, however, not be irrelevant to bear in mind the fact that the court 's 751 jurisdiction was invoked by a private party.
The criminal law is not to be used as an instrument of wreaking private vengeance by an aggrieved party against the person who, according to that party, had caused injury to it.
Barring a few exceptions, in criminal matters the party who is treated as the aggrieved party is the State which is the custodian of the social interests of the community at large and so it is for the State to take all the steps necessary for bringing the person who has acted against the social interests of the community to book.
In our opinion it was injudicious for the learned Sessions Judge to order the commitment of the appellants particularly so without giving any thought to the aspects of the matter to which we have adverted.
Even the High Court has come to no positive conclusion about the propriety of the direction made by the Sessions Judge and has merely said that the Sessions Judge was not unjustified in making the order which he made in each of the applications.
For all these reasons we allow the appeals, quash the orders of the Sessions Judge as affirmed by the High Court and direct that the trials of each of the appellants shall proceed before the Magistrate according to law from the stages at which they were on the date on which the stay order became operative.
Appeals allowed.

summary/full:
The accused were charged under section 392, Indian Penal Code in the Court of a Magistrate.
The prosecution failed in its attempt to have the procedure under Ch.
XVIII, Code of Criminal Procedure adopted.
After 15 months, the prosecution made an application to the Magistrate to frame a charge under section 386 or section 387 Indian Penal Code (which are exclusively triable by a Court of Sessions) and to commit the accused to the Court of Sessions, which was refused.
Thereafter a second application was made for committing the case to the Court of Sessions.
This, too, was rejected by the Magistrate.
Immediately thereafter, one of the informants, filed a revision which the Sessions Judge allowed being of the view that the framing of charges under section 386 or 387, I.P.C. could not be ruled out altogether and directed the Magistrate to commit the accused to the Court of Sessions.
The appellants preferred revision to the High Court, contending that the Sessions Judge had no jurisdiction to pass an order for commitment as there was no order of discharge by the Magistrate.
The High Court rejected the revision application.
In appeal to this Court HELD : There is nothing in the language of section 437 of the Code of Criminal Procedure from which it could be said that this power is not exercisable during the pendency of a trial before a Magistrate or that this power can be exercised only where Magistrate had made an express order of discharge.
The provisions of the Code indicate that an express order of discharge is contemplated only in a case where a Magistrate comes to the conclusion that the act alleged against the accused does not amount to any offence at all and, therefore, no question of trying him either himself or by another court arises.
Where on a certain set of facts the accused is alleged by the prosecution to have committed an offence exclusively triable by a Court of Sessions but the Magistrate is of the opinion that the offence disclosed is only an offence which he is himself competent to try and either acquits or convicts him there is an end of the matter in so far as the very set of acts are concerned.
The facts may disclose really a very grave offence such as, say, one under section 302 I.P.C. but the Magistrate thinks that the offence falls under section 304A which he can try and after trying the accused either convicts or acquits him.
In either case the result would be that the appropriate court will be prevented from trying the accused for the grave: offence which those very facts disclose.
It is to obviate such a consequence and to prevent inferior courts from clutching at jurisdiction that the provisions of section 437, Criminal Procedure Code have been enacted.
G] Nahar Singh vs State, I.L.R. (1952) 2 All.
152, Sri Dulap Singh Ors.
vs State through Sri Harnandan Singh A.I.R. 1954 All. 163 and Sambhu Charan Mandal vs the State , disapproved.
741 In re : Nalla Baligadu, A.T.R. , Rambalam Pd.
Singh vs State of Bihar, A.I.R. 1960 Patna 507, Krishnareddi vs Subbamma,I.L.R. Shambhooram vs Emperor, A.I.R. 1935 Sind 221,Sultan Al; vs Emperor, A.I.R. 1934 Lahore 164 and In re Valturu Narayan Reddy & Ors.
A.I.R. 1955 Andhra 48.
, approved.
Yunus Shaikh vs
The State, A.I.R. 1953 Cal.567 distinguished.
The provisions of section 437, however, do not make it obligatory upon a Sessions Judge or a District Magistrate to order commitment in every case where an offence is exclusively triable by a Court of Sessions.
The law gives a discretion to the revising authority and that discretion has to be exercised judicially.
[750 B] Considering the delay in moving the Sessions Judge, the terrible harassment that the accused would be called upon to face if the Magistrate were to commit them for trial by a Court of Sessions now, and further that it was a private party who had no locus standi that went up in revision before the Sessions judge after the last attempt by the prosecution had failed, it was injudicious for the Sessions Judge to order the commitment of the accused, [150 F H; 751 B C]