judgement:
Criminal Appeal NO.
56 of 1960.
Appeal by special leave from the judgment and order dated November 27, 1959 of the Patna High Court in Criminal Appeal No. 63 of 1957.
D.P. Singh, for the appellants.
K.K. Sinha, for the respondent.
October 4, 1963.
The Judgment of the Court was delivered by DAs GUPTA J.
These seven appellants were tried by the Assistant Sessions Judge, Saran, on charges under section 395 of the Indian Penal Code and also under section 323 of the Indian Penal Code but were acquitted by him of both the charges.
The prosecution case was that on November 15, 1956 when Bhadai Sah, a businessman belonging to Teotith, within police station, Baikunthpur, was passing along the village road on his way to purchase patua, the seven appellants armed with lathis surrounded him and demanded that he should hand over the monies he had with him.
Bhadai had Rs. 250 with him but he refused to part with them.
Kesho Singh one of the appellants tried to take away forcibly the currency notes from his pocket but Bhadai caught hold of his arm and raised an alarm.
On this all the appellants assaulted him with their lathis and as he fell injured Kesho Singh took away the money from his pocket.
Bhadai thereupon filed a petition of complaint in the Court of the Sub Divisional Magistrate, Gopalgunj, on November 22, 1956.
The 39 Magistrate after examining him on solemn affirmation made an order asking the Sub Inspector of police, Baikunthpur, to institute a case and report by December 12, 1956.
Ultimately, a charge sheet was submitted by the Police and the accused persons were committed to the ' Court of Sessions.
The Sessions trial ended, as already stated, in the acquittal of all the appellants.
Against the order of acquittal, Bhadai Sah filed an appeal under section 417(3) of the Code of Criminal Procedure in the High Court of Judicature at Patna.
On the Following day two learned Judges of the High Court made the order: "The appeal will be heard".
The appeal then came up for hearing before two other learned Judges of the Court who being of opinion that the learned Sessions Judge had rejected the prosecution evidence "on unsound standards without any real effort to assess the credibility of the evidence" and that the prosecution case was Fully established by the evidence, set aside the order of acquittal and convicted the appellants under section 395 of the Indian Penal Code and sentenced them to two years ' rigorous imprisonment.
Against this order of the High Court the present appeal has been filed by special leave of this Court.
The main contention urged in support of the appeal is that in this case no appeal lay to the High Court against an order of acquittal under section 417(3) of the Code of Criminal Procedure.
This provision in section 417 was introduced in the Code by the Amending Act XXVI of 1955, giving a complainant a right of appeal against acquittal where a case is instituted upon a complaint.
Before this new legislation, only the State Government had the right to appeal against an order of acquittal.
The result of the new provision in sub section
3 is that if an order of acquittal is passed by any court other than a High Court in a case instituted upon a complaint, the High Court on an application made to it by the complainant in this behalf may grant special leave to appeal from the order of acquittal and on such leave being granted the complainant may present such an appeal to the High Court.
It 40 is to be noticed that this right is limited only to cases instituted upon a complaint.
On behalf of the appellants it is argued that the case against them was not instituted on any complaint but was instituted on a police report.
The Code does not contain any definition of the words "institution of a case".
It is clear however and indeed not disputed, that a case can be said to be instituted in a court only when the court takes cognizance of the offence alleged therein.
Section 190(1) of the Code of Criminal Procedure contains the provision for cognizance of offences by Magistrates.
It provides for three ways in which such cognizance can be taken.
The first is on receiving a complaint of facts which constitute such offence; the second is on a report in writing of such facts that is, facts constituting the offence made by any police officer; the third is upon information received from any person other than a police officer or upon the Magistrate 's own knowledge or suspicion that such offence has been committed.
Section 193 provides for cognizance of offences being taken by courts of sessions on commitment to it by a Magistrate duly empowered in that behalf.
Section 194 provides for cognizance being taken.
by the High Court of offences upon a commitment made to it in the manner provided in the Code.
An examination of these provisions makes it clear that when a Magistrate takes cognizance of an offence upon receiving a. complaint of facts which constitute such offence, a case is instituted in the Magistrate 's Court and such a case is one instituted on a complaint.
Again, when a Magistrate takes cognizance of any offence upon a report in writing of such.
facts made by any police officer it is a case instituted in the Magistrate 's court on a police report.
To decide whether the case in which the appellants were first acquitted and thereafter convicted was instituted on a complaint or not, it is necessary to find out whether the Sub Divisional Magistrate, Gopalgunj, in whose Court the case was instituted, took 41 cognizance of the offences in question on the complaint of Bhadai Sah filed in his Court 0n November 22, 1956 or on the report of the Sub Inspector of Police dated the 13th December, 1956.
It is well settled now that when on a petition of complaint being filed before him a Magistrate applies his mind for proceeding under the various provisions of Chapter XVI of the Code of Criminal Procedure, he must be held to have taken cognizance of the offences mentioned in the complaint.
When however he applies his mind not for such purpose but for purposes of ordering investigation under section 156(3) or issues a search warrant for the purpose of investigation he cannot be said to have taken cognizance of any offence.
It was so held by this Court in R.R. Chari vs State of U. P.(1) and again in Gopal Das vs State of, Assam(2) In the case before us the Magistrate after receipt of Bhadai Sah 's complaint proceeded to examine him under section 200 of the Code of Criminal Procedure.
That section itself states that the Magistrate taking cognizance of an offence on a complaint shall at once examine the complainant and the witnesses present, if any, upon oath.
This examination by the Magistrate under section 200 of the Code of Criminal Procedure puts it beyond doubt that the Magistrate did take cognizance of the offences mentioned in the complaint.
After completing such examination and recording the substance of it to writing as required by section 200 the Magistrate could have issued process at once under section 204 of the Code of Criminal Procedure or could have dismissed the complaint under section 203 of the Code of Criminal Procedure.
It was also open to him, before taking either of these courses, to take action under section 202 of the Code of Criminal Procedure.
That section empowers the Magistrate to "postpone the issue of process for compelling the attendance of persons complained against, and either enquire into the case himself or if he is a Magistrate other than a Magistrate of the third class, direct an enquiry or investigation to be made by any Magis (1) ; (2) A.I.R (1961) S.C. 986.
42 trate subordinate to him, or by a police officer, or by such other person as he thinks fit, for the purpose of ascertaining the truth or falsehood of the complaint.
" If and when such investigation or inquiry is ordered the result of the investigation or inquiry has to be taken into consideration before the Magistrate takes any action under section 203 of the Code of Criminal Procedure.
We find that in the case before us the Magistrate after completing the examination under section 200 of the Code of Criminal Procedure and recording the substance of it made the order in these words : "Examined the complaint on s.a.
The offence is cognizable one.
To S.I. Bakunthpur for instituting a case and report by 12.12.56.
" If the learned Magistrate had used the words "for investigation" instead of the words "for instituting a case" the order would clearly be under section 202 01 ' the Code of Criminal Procedure.
We do not think.
that the fact that he used the words "for instituting a case" makes any difference.
It has to be noticed that the Magistrate was not bound to take cognizance of the offences on receipt of the complaint.
He could have, without taking cognizance, directed an investigation of the case by the police under section 156(3) of the Code of Criminal Procedure.
Once however he took cognizance he could order investigation by the police only under section 202 of the Code of Criminal Procedure and not under section 156(3) of the Code of Criminal Procedure.
As it is clear here from the very fact that he took action under section 200 of the Code of Criminal Procedure, that he had taken cognizance of the offences mentioned in the complaint, it was open to him to order investigation only under section 202 of the Code of Criminal Procedure and not under section 156(3) of the Code.
It would be proper in these circumstances to hold that though the Magistrate used the words "for instituting a case" in this order of November 22, 1956 he was actually taking action under section 202 of the Code of Criminal Procedure, 43 that being the only section under which he was in law entitled to act.
The fact that the Sub Inspector of Police treated the copy of the petition of complaint as a first in formation report and submitted "charge sheet" against the accused persons cannot make any difference.
In the view we have taken of the order passed by the Magistrate on November 22, 1956, the report made by the police officer though purporting to be a report under section 173 of the Code of Criminal Procedure should be treated in law to be a report only under section 202 of the Code of Criminal Procedure.
Relying on the provisions in section 190 of the Code that cognizance could be taken by the Magistrate on the report of the police officer the learned counsel for the appellants argued that when the Magistrate made the order on November 22, 1956 his intention was that he would take cognizance only after receipt of the report of the police officer and that cognizance should be held to have been taken only after that report was actually received in the shape of a charge sheet under section 173 of the Code, after December 13, 1956.
The insuperable difficulty in the way of this argument, however, is the fact that the Magistrate had already examined the complainant under section 200 of the Code of Criminal Procedure.
That examination proceeded on the basis that he had taken cognizance and in the face of this action it is not possible to say that cognizance had not already been taken when he made the order "to sub Inspector, Baikunthpur, for instituting a case and report by 12.12.56." Cognizance having already been taken by the Magistrate before he made.
the order there was no scope of cognizance being taken afresh of the same offence after the police officer 's report was received.
There is thus no escape from the conclusion that the case was instituted on Bhadai Sah 's complaint on November 22, 1956 and not on the police report submitted later toy the Police Sub Inspector, Baikun 44 thpur.
The contention that the appeal did not lie under section 417(3) of the Code of Criminal Procedure must therefore be rejected.
The next contention raised on behalf of the appellants is that the High Court was not justified in interfering with the order of acquittal passed by the learned Assistant Sessions Judge.
The reasoning on which the learned Assistant Sessions Judge rejected the evidence of the prosecution witnesses and the reasons for which the learned Judges of the High Court were of opinion that there was no real effort by the learned ' Sessions Judge to assess the credibility of the evidence have been placed before us.
It is quite clear that the High Court examined the matter fully and carefully and on a detailed consideration of the evidence came to the conclusion that assessment of the evidence had resulted in a serious failure of justice.
The principles laid down by this Court in a series of cases as regards interference with orders of acquittal have been correctly followed by the High Court.
There is nothing, therefore, that would justify us in reassessing the evidence for ourselves.
As relevant parts of the evidence were however placed before us, we think it proper to state that on a consideration of such evidence we are satisfied that the decision of the High Court is correct.
As a last resort the learned counsel for the appellants argued that the Magistrate had acted without jurisdiction in asking the police to institute a case and so the proceedings subsequent to that order were all void.
As we have already pointed out, the order of the Magistrate asking the police to institute a case and to send a report should properly and reasonably be read as one made under section 202 of the Code of Criminal Procedure.
So, the argument that the learned Magistrate acted without jurisdiction cannot be accepted.
At most it might be said that in so far as the learned Magistrate asked the police to institute a case he acted irregularly.
There is absolutely no reason, however, to think 45 that irregularity has resulted in any failure justice.
The order of conviction and sentence passed by the High Court cannot be reversed or altered on account of that irregularity.
In the result, the appeal is dismissed.
Appeal dismissed.

summary/full:
The respondent lodged a complaint before the Sub Divisional Magistrate alleging that the appellants assaulted him with lathis and forcibly took away currency notes from his pocket.
After completing the examination under section 200 of the Code of Criminal Procedure, the Magistrate made the following order "Examined the complaint on s.a.
The offence is cognizable one.
To S.I. Baikunthpur for instituting a case and report by 12.12.56.
" Ultimately, a charge sheet was submitted by the police and the appellants were committed to the court of sessions but the trial ended in acquittal.
On appeal by the respondent under section 417(3) of the Code of Criminal Procedure, the order of acquittal was set aside by the High Court and the appellants were convicted under section 395 of the Penal Code and sentenced to two years rigorous imprisonment.
It was mainly urged on behalf of the appellants that in this case no appeal lay to the High Court under section 417(3) as the case against them was not instituted on any complaint but on a police report.
Held: (i) When on a petition of complaint being filed before him a Magistrate applies his mind for proceeding under the various provisions of Chapter XVI of the Code of Criminal Procedure, he must be held to have taken cognizance of the offences mentioned in the complaint.
When however he applies his mind not for such purpose but for purposes of ordering investigation under section 156(3) or issues a search warrant for the purpose of investigation.
he cannot be said to have taken cognizance of any offence.
R.R. Chari vs State of U.P., ; and Gopal Das vs State of Assam, A.I.R. 1961 S.C. 986, applied.
In the present case, as it is clear from the very fact that the Magistrate took action under section 200 of the Code of Criminal Procedure, that he had taken cognizance of the offences mentioned in the complaint, it was open to him to order investigation only under section 202 and not under section 156(3) of the Code of Criminal Procedure.
Therefore, it must be held that though the Magistrate used the words "for instituting a case" in his order he was actually taking action under section 202 of the Code, that being the only section under which he was in law entitled to act.
38 Cognizance having already been taken by the Magistrate before he made the order there was no scope of cognizance being taken afresh of the same offence after the police officers ' report was received.
Thus the case was instituted on complaint and not on the police report submitted later.
The contention therefore that the appeal d d not lie under section 417(3) must be rejected.
(ii) The order of the Magistrate asking the police to institute a case and to send a report should properly and reasonably be read as one made under section 202 of the Code of Criminal Procedure.
So the contention that he acted without jurisdiction cannot be accepted.
At most it might be said that in so far as he asked the police to institute a case he acted irregularly, but there is no reason to think that it has resulted in any failure of justice.


judgement:
Civil Appeal No. 530 of 1963.
14 Appeal from the judgment and order dated February 14, 1963, of the Madhya Pradesh High Court in First Appeal No. 34 of 1962.
U.M. Trivedi, Malik Arjun Das, Shanti Swarup Khanduja and Ganpat Rai, for the appellant.
G.S. Pathak, U.N. Bhachawat, Rameshwar Nath and S.N. Andley, for respondent No. 1.
October 3, 1963.
The Judgment of the Court was delivered by SHAH J.
Eight candidates (including the appellant Mohan Singh and the first respondent Bhanwarlal) filed nomination papers for election to the Madhya Pradesh Legislative Assembly from the Sitamau constituency.
The nomination of one Hussain Khan was rejected by the Returning Officer at the initial scrutiny and another candidate Himmat Singh withdrew his candidature before the date of polling, which took place on February 24, 1962.
On the counting of the votes Mohan Singh was found to have secured the largest number of votes at the election, and he was declared elected.
Bhanwarlal applied under section 80 read with sections 100 and 101 of the Representation of the People Act (43 of 1951), to the Election Commission of India for an order declaring the election of Mohan Singh void, and Mohan Singh disqualified because of committing corrupt practices detailed in the petition and for an order declaring the applicant Bhanwarlal elected.
Among the many grounds of corrupt practices alleged in the petition, two grounds set out in cls.
(c) & (d) of para 11 of the petition survive for consideration in this appeal.
It was averred in these clauses that Mohan Singh the successful candidate had shortly before the polling of votes published two leaflets in Hindi containing statements of fact with regard to the personal character or conduct of the applicant Bhanwarlal which were false and which Mohan Singh believed to be false or did not believe to be true and that the statements were calculated 15 to prejudice the prospects of Bhanwarlal at the election.
Copies of the two leaflets were annexed to the petition, and were marked annexures 'D ' & 'E '.
The petition was referred for trial by the Election Commission to the Election Tribunal, Ratlam, under section 86 of the Representation of the People Act.
Mohan Singh by his written statement denied that he had published the leaflets and submitted that the leaflets which appeared to have been published by the electorate contained "a factual and fair criticism of the public; activities" of Bhanwarlal and that they were not calculated to prejudice his prospects at the election.
Mohan Singh applied to the Tribunal for an order dismissing the petition in limine on the ground, among others, that there was non compliance with section 82 of the Act, because one of the candidates at the election named Himmat Singh against whom allegations of corrupt practice in regard to the withdrawal of his candidature were made was not joined as a respondent.
The Tribunal rejected the application for dismissal of the petition and held that it was established on the evidence that Mohan Singh and his agents did commit, amongst others, the corrupt practice defined in section 123(4) of the Act by publishing the leaflets, annexures 'D '& 'E ', containing statements which were false, to the knowledge and belief of Mohan Singh, and made with the knowledge that they would reasonably prejudice the election chances of Bhanwarlal.
In coming to that conclusion the Tribunal primarily relied upon the testimony of one Rameshchandra, a compositor in the Maheshwari Printing Press, Mandsaur, and upon certain corroborative circumstances.
In appeal by Mohan Singh against the order, the High Court of Madhya Pradesh on a review of the evidence agreed with the Tribunal that Mohan Singh was instrumental in getting printed leaflets annexures 'D ' & 'E ' and the leaflets were distributed in certain villages in the constituency by Mohan Singh and his agents Satyanarayan and Kailash.
16 In this appeal with special leave it was urged that the election petition filed by Bhanwarlal was liable to be dismissed in limine, as it did not comply with the requirements of section 82 of the Representation of the People Act.
On the merits it was urged that Mohan Singh did not publish the leaflets annexures 'D ' & 'E ' and that in any event the publication did not constitute a corrupt practice within the meaning of section 123 (4) of the Act.
Whether for alleged non compliance with the requirements of section ,82 of the Act, the petition by Bhanwarlal was not maintainable must first be determined, for if the petition did not comply with the mandatory provisions of the statute, irrespective of whether a corrupt practice was committed by Mohan Singh, the petition must stand dismissed without further investigation.
In paragraph 11(b) of the petition it was averred that on January 20, 1962, Mohan Singh, "offered at Nahargarh to Shri Himmat Singh an independent candidate to help him in procuring a job for him in Dalauda Sugar Factory or elsewhere to withdraw his candidature from the election.
That as a consequence of this offer of illegal gratification Himmat Singh withdrew his candidature from the Sitamau Assembly constituency.
" The language used is somewhat ungrammatical, but the purport is clear that Mohan Singh with a view to persuade Himmat Singh to withdraw from the election offered to help him to secure employment with the Dalauda Sugar Factory, or with some other employer, and in consequence of this offer which amounted to illegal gratification Himmat Singh had withdrawn himself from being candidate at the election for the Sitamau constituency.
Section 123 (1) defines the corrupt practice of "bribery" and by el.
(B) receipt of, or agreement to receive, any gratification, whether as a motive or a reward (a) by a person for standing or not standing as, or for withdrawing from being, a candidate; or 17 (b) by any person whomsoever for himself or any other person for voting or refraining from voting, or inducing or attempting to induce any elector to vote or refrain from voting, or any candidate to withdraw his.
candidature, constitutes the corrupt practice of bribery by a person other than the candidate.
It is submitted that by para 11 (b) it was averted that Himmat Singh who had filed his nomination paper had agreed to receive gratification, as a motive or a reward for withdrawing from being a candidate, and that it was necessary in view of section 82 of the Act to implied Himmat Singh as ?.
party to the petition, and failure to implied him would involve dismissal of the petition.
To appreciate the argument it is necessary to refer to certain relevant provisions of the Act.
By section 80 no election is liable to be called in question except by an election petition presented in accordance with the provisions of Part VI of the Act.
Section 81 prescribes the g. rounds on which, the persons by whom and the period during which an election petition may be presented, and also the procedure for presentation of the petition.
By section 82 it is enacted that all contesting candidates shall be joined as party respondents where the petitioner, in addition to claiming a declaration that the election of all or any of the returned candidates is void, claims a further declaration that he himself or any other candidate has been duly elected, and where no such further declaration is claimed, all the returned candidates shall be joined.
Again where allegations of corrupt practice are made against another candidate, such other candidate shall be joined as a respondent.
Section 79 which is the interpretation section in respect of Parts VI, VII and VIII (and section 82 occurs in Part VI) defines the expression "candidate" as meaning a person who has been or claims to have been duly nominated as a candidate at any election, and any such person shall be deemed to have been a candidate as from the time when, with the election in prospect, he began to hold himself out as a prospective candidate.
If the provisions, among others, 1/SCI/64 2 18 of sections 81 or 82 have not been complied with, the Election Commissioner must dismiss the petition (section 85), and if the Commission does not so order the Tribunal is enjoined by section 90(3) to dismiss the petition which does not comply with the provisions of sections 81 or 82.
Himmat Singh had filed his nomination paper, and on that account by virtue of the definition of section 79 he was a candidate for the purposes of Parts VI, VII & VIII, and did not cease to be a candidate merely because he withdrew his candidature.
If therefore the petition contained any imputation of corrupt practice made against Himmat Singh, it could not be regarded as properly constituted unless he was impleaded as a respondent, for, by the definition of "candidate" in section 79(b), the expression "any other candidate" in s, 82(b) must include a candidate who had withdrawn his candidature.
But in our judgment in para 11 (b) there is no allegation of corrupt practice against Himmat Singh.
What is alleged is that Mohan Singh had offered to help Himmat Singh "in procuring a job in Dalauda Sugar Factory or elsewhere" and that as a consequence of that offer Himmat Singh had withdrawn his candidature from the election.
There is no express averment in the petition about the acceptance of the offer by Himmat Singh, but it would border upon supererogation to insist that even if offer to help to procure a job amounted to offer of gratification, an allegation that in consequence of this offer Himmat Singh had withdrawn his candidature from the election did not amount to a plea of acceptance of that offer unless it was so expressly averred.
However in our view a mere offer of help to secure employment without more is not offer of gratification within the meaning of section 123 (1) (B) of the Act.
The expression "gratification" is not defined in the Act but the Explanation to sub section
(1) of section 123 furnishes an indication as to what in the view of the Parliament amounts to gratification.
The Explanation states: "For the purposes of this clause the term 'gratification ' is not restricted to pecuniary graft 19 fications or gratifications estimable in money and it includes all forms of entertainment and all forms of employment for reward but it does not include the payment of any expenses bonafide incurred at, or for the purpose of, any election and duly entered in the account of election expenses referred to in section 78.
" The Explanation extends the expression "gratification" to include all forms of entertainment and all forms of employment for reward but not payment of bona fide expenditure incurred at or for the purpose of election if duly entered in the account of election expenses.
Gratification in its ordinary connotation means satisfaction.
In the context in which the expression is used and its delimitation by the Explanation, it must mean something valuable which is calculated to satisfy a person 's aim, object or desire, whether or not that thing is estimable in terms of money; but a mere offer to help in securing employment to a person with a named or unnamed employer would not amount to such gratification.
There is no plea that Mohan Singh had offered employment to Himmat Singh with the Dalauda Sugar Factory or with another employer; it was merely alleged that Mohan Singh had offered to assist or help Himmat Singh in obtaining employment with the "Dalauda Sugar Factory or else where".
The acceptance of offer which constitutes a motive or reward for withdrawing from the candidature must be acceptance of gratification; and if gratification does not include all offers and acceptances of mere promises, but requires, to constitute it, an offer and acceptance relating to a thing of some value, though not necessarily estimable in terms of money, a mere offer to help in getting employment is not such offer of gratification within the meaning of section 123(1)(B) as to constitute it a corrupt practice.
It was in the circumstances not necessary on the allegations made in para 11(b) of the petition to implead Himmat Singh as a respondent to the petition.
We therefore agree 20 with the High Court, though for different reasons, that the petition filed by Bhanwarlal was not defective.
Counsel for Mohan Singh challenged the finding of the High Court that Mohan Singh was instrumental in publishing the leaflets annexures 'D ' & 'E '.
He urged that in the trial of an election petition approach to the evidence must be as in a criminal trial and no fact may be held proved unless it is established beyond reasonable doubt.
The onus of establishing a corrupt practice is undoubtedly on the person who sets it up, and the onus is not discharged on proof of mere preponderance of probability, as in the trial of a civil suit: the corrupt practice must be established beyond reasonable doubt by evidence which is clear and unambiguous.
But the testimony of Rameshchandra corroborated by the circumstances set out in detail in the judgments of the Tribunal and the High Court was accepted and the testimony of witnesses for Mohan Singh who claimed that other persons without his consent or connivance were responsible for getting the leaflets printed was disbelieved.
The evidence about the distribution of the leaflets in question by the appellant and his agents was also accepted by the Tribunal and the High Court.
It was also found that these leaflets were distributed simultaneously.
In recording their conclusions the Tribunal and the High Court did not proceed on mere grounds of probability.
The findings recorded by the Tribunal and the High Court are therefore concurrent findings of fact rounded on appreciation of oral evidence and no ground is made out for departing from the settled practice of the Court against interference with those concurrent findings of fact.
The next question to be considered is whether the publication of the leaflets amounts to commission of a corrupt practice within the terms of section 123 (4) of the Representation of the People Act, 1951.
Section 123 sets out what the diverse corrupt practices recognised by the Act are.
Clause (4) defines a corrupt practice by publication of false statements calculated 21 to prejudice the prospects of a candidate 's election.
To bring a corrupt practice within the purview of el.
(4) there must be a publication by a candidate or his agent or by another person with the consent of the candidate or his election agent: the publication must contain a statement of fact which is false, and which the candidate or his agent believes to be false or does not believe to be true, the statement must be in relation to the personal character or conduct of the candidate; and it must be reasonably calculated to prejudice the prospects of the candidates election.
The expression "statement of fact" in section 123 (4) includes not only an express imputation but also an innuendo if one such may reasonably be raised from the language in which it is couched and the manner of its publication Annexure 'D ' is in Hindi.
The caption of that leaflet is "The surety (security) of Shri Nahata has to be forfeited because he has defrauded the public and has shown his face after five years to take votes.
" Counsel for Mohan Singh submitted that the expression "defrauded" is not a correct rendering into English of the Hindi expression "dhoka diya"; it means "misled".
The caption is followed by a photograph of Mohan Singh together with his election symbol and it is stated that the ballot paper of Mohan Singh is of pink colour and that the election symbol is the picture of a tamp It then proceeds to state that "Sitamau constituency has awakened.
Nahata (Bhanwarlal) has run away.
Shinde, Kishen Gupta Patil Patel, you may safeguard the interests of your Bhanwarlal Nahata as much as you like but his surety (security) is sure to be forfeited.
" Then follow nine paragraphs the third of which alone is material.
That para graph reads: "We have heard that your friend has collected 28 thousand rupees from several villages in the name of opium.
The agriculturists did not get the licenses and those agriculturists who got them had to spend a lot of money and time and the licenses for opium were received on execution of bonds for 8 seers.
" 22 The leaflet concludes by a note which reads: "Every voter will get ' two ballot papers one is of pink colour for Legislative Assembly for Thakur Mohan Singh .
Put the seal on the symbols of lamp on both the ballots pink and white.
You read this pamphlet and give it to your friends to spread the message from house to house.
Submitted by Nahata Virodhi Morcha Sitamau Constituency.
" Annexure 'E ' bears the caption: "The Bureaucrats of yesterday Congressmen of to day".
It consists of two parts the first relates to certain allegations against one Dr. Raghubir Singh who it appears was a candidate from the constituency for Parliament and the second relates to Bhanwarlal.
The portion dealing with Bhanwarlal Nahata states: "Let Sriman Shri 1008 of Shri Nahata tell? (1) Did you not defraud the agriculturists with respect to the licences of opium ? (the other six questions are not relevant, and need not be reproduced) Public has already decided and now it is not going to fall prey to your fraud and greed.
On all sides "the public has decided to put seal on lamp and make it victorious.
Therefore the congressmen should not be misled while making propaganda.
Submitted by Goswami Mahant Ratnagir.
" It is said that the last paragraph is not correctly rendered into English: it merely stated, it is urged, that the public have already known the truth and they are not going to fall a prey to the misleading promises and inducements etc.
No authorised translation of the two leaflets is furnished, but we will proceed to ascertain the purport of the relevant parts of the two leaflets as incorporated in the printed book, with the modifications suggested by counsel for Mohan Singh.
Paragraph 3 of annexure 'D ' as it stands rendered into English is not very clear in its import.
To a person completely unacquainted with the local conditions the expression "in the name of opium" may convey no meaning.
But in considering whether a 23 publication amounts to a corrupt practice within the meaning of section 123(4) the Tribunal would be entitled to take into account matters of common knowledge among the electorate and read the publication in that background, for one of the ingredients of the particular corrupt practice is the tendency of the statement in the publication to be reasonably calculated to prejudice the prospects of that candidate 's election.
The test in cases under section 123(4) is whether the imputation beside being false in fact, is it published with the object of lowering the candidate in the estimation of the electorate and calculated to prejudice his prospects at the election? And in ascertaining whether the candidate is lowered in the estimation of the electorate, the imputation made must be viewed in the light of matters generally known to them.
It is common ground that in the territory which forms the Sitamau constituency, licences for cultivation of opium are granted by the authorities to agriculturists, and the statement made in paragraph 3 apparently is that Bhanwarlal had collected Rs. 28,000 from the agriculturists in the constituency for securing licences for cultivation of opium but the agriculturists did not get the licences and even those who obtained the licences had to spend considerable sums of money.
The innuendo in the statement cannot be mistaken: it is that a large amount of money was collected from agriculturists by Bhanwarlal on the 'representation that he would obtain licences for opium cultivation, but he did nothing in that behalf and misappropriated the amount.
That is further made clear by paragraph 1 in annexure 'E ' relating to Bhanwarlal.
The form in which that allegation is made is in the interrogative form.
By annexure 'E ' certain questions were addressed to Bhanwarlal and one of the questions was whether he had not defrauded the agriculturists with respect to the licences of opium? The interrogative form is often employed not with a view to secure information but to make and emphasize an assertion.
The use of the interrogative form would not make the statement any the less an imputation if it is fairly capable of being 24 so read.
As we have already observed the evidence establishes that the leaflets annexures 'D ' & 'E ' were published simultaneously and annexure 'D ' contains an allegation about the collection of Rs. 28,000 by Bhanwarlal Nahata "in the name of opium", and in annexure 'E ' an express imputation of defrauding the agriculturists in the matter of licences for opium cultivation is made.
On a reasonable reading of these two leaflets there was no doubt that the person responsible for the publication of these two leaflets intended to convey that Bhanwarlal had deceived the agriculturists into parting with the sum of Rs. 28,000 on the representation that licences for cultivation of opium would be obtained for them.
The two leaflets also clearly imply that he misappropriated the fund collected by him.
Bhanwarlal denied that he had utilised any fund collected from the agriculturists for his own purposes.
He stated that some amounts of money were collected from cultivators of opium by the District Congress Committee, and receipts were given by the District Congress Committee in respect of those collections on behalf of the District Congress Committee.
He denied that he had misled the agriculturists or that he had misappropriated any amount collected from the agriculturists.
He asserted that the amounts collected from the agriculturists were for the District Congress Committee, and did in fact go to that body.
The imputation is undoubtedly in relation to the personal conduct of Bhanwarlal, and if the testimony of Bhanwarlal be accepted, the imputation must be held to be false.
No attempt was made at the trial to prove the truth of the imputations.
Even in the written statement filed by Mohan Singh it was not his plea that the imputations against Bhanwarlal were true or that he believed them to be true.
From the manner in which and the time when the leaflets annexures 'D ' and 'E ' were published, there can be no doubt that those leaflets were published as a part of a political campaign to injure the prospects of Bhanwarlal at the election, and if without making an 25 enquiry about the collection of the amount of Rs. 28,000 and the destination therefore, it was imputed against Bhanwarlal that he had defrauded the agriculturists and misappropriated the amount collected, the inference that the statement made was to the knowledge of the maker false or was not believed by him to be true, would readily be made.
The imputation was on the face of it one reasonably calculated to prejudice the prospects of the candidate Bhanwarlal at the election.
The High Court was therefore right in holding that the corrupt practice charged against the appellant Mohan Singh under section 123 (4) was established.
The appeal fails and is dismissed with costs.
Appeal dismissed.

dataset_name: IN-Abs

summary/full:
The appellant was declared elected to the Madhya Pradesh Legislative Assembly.
Another candidate Himmat Singh withdrew his candidature before the date of polling.
Respondent 1 one of the defeated candidates, challenged the election by a petition under the Representation of the People Act alleging that the appellant had disqualified himself by committing corrupt practices.
It was alleged that he had shortly before the polling of votes published two leaflets in Hindi containing statements of fact with regard to the personal character or conduct of respondent 1 which were false and which the appellant believed to be false or did not believe to be true and that the statements were calculated to prejudice the prospects of respondent 1 at the election.
The appellant denied 13 the said allegations and applied to the Election Tribunal for dismissing the petition in limine because Himmat Singh against whom allegations of corrupt practice in regard to the withdrawal of candidature were made, was not joined as a respondent.
The Tribunal rejected the application and held that it was established on the evidence that the appellant did commit corrupt practice by publishing the two leaflets.
In appeal the High Court agreed with the Tribunal.
It was urged on behalf of the appellant that the election petition was liable to be dismissed in limine, as it did not comply with the requirements of s.82 of the Act, that the appellant did not publish the leaflets, and that in any event the publication did not constitute a corrupt practice within the meaning section 123(4) of the Act.
Held: (i) The election petition was not detective.
There was no allegation of corrupt practice against Himmat Singh.
It was merely alleged that the appellant had offered to assist or help Himmat Singh in obtaining employment with "Dalauda Sugar Factory or elsewhere".
The acceptance of offer which constitutes a motive or reward for withdrawing from the candidature must be acceptance of gratification.
Gratification does not include offers and acceptances of mere promises, but requires ,an offer and acceptance relating to a thing of some value, though not necessarily estimable in terms of money.
A mere offer to help in getting employment is not such offer of gratification within the meaning of section 123(1)(B) as to constitute it a corrupt practice.
On the allegations therefore, it was not necessary to implead Himmat Singh as a respondent to the petition.
(ii) The onus of establishing a corrupt practice is undoubtedly on the person who sets it up, and the onus is not discharged on proof of mere preponderance of probability, as in the trial of a civil suit; the corrupt practice must be established beyond reasonable doubt by evidence which is clear and unambiguous.
(iii) In considering whether a publication amounts to a corrupt practice within the meaning of section 123(4) the Tribunal would be entitled to take into account matters of common knowledge among the electorate and read the publication in that background, for one of the ingredients of the particular corrupt practice is the tendency of the statement in the publication to be reasonably calculated to prejudice the prospects of that candidate 's election.
The test in cases under section 123(4) is whether the imputation, besides being false in fact, is published with the object of lowering the candidate in the estimation of the electorate and calculated to prejudice his prospects at the election.
In ascertaining whether the candidate is lowered in the estimation of the electorate, the imputation made must be viewed in the light of matters generally known to them.


judgement:
ivil Appeal No. 593 of 1963.
Appeal by special leave from the judgment and order dated December 19, 1962, of the Madras High Court in Writ Appeal No. 157 of 1961.
M.C. Setalvad, and R. Gopalakrishnan, for the appellant.
G.S. Pathak, O.C. Mathur, J.B. Dadachanji and Ravinder Narain, for respondent No. 1.
Ranganadham Chetty and A.V. Rangant, respondents Nos. 2 and 3.
The Judgment of P.B. Gajendragadkar, K.N. Wanchoo, J.C. Shah, Ragubar Dayal JJ.
was delivered by Gajendragadkar J. Subba Rao J. delivered a dissenting opinion.
GAJENDRAGADKAR J.
The short question which this appeal raises for our decision relates to the limits of the jurisdiction of the High Court in issuing a writ of certiorari while dealing with.
orders passed by the appropriate authorities granting or refusing to grant permits under the provisions of the (hereinafter called 'the Act ').
67 The State Transport Authority, Madras, (hereinafter referred to as Authority)issued a notification on the 4th July, 1956, under section 57(2) of the Act calling for applications for the grant of two stage carriage permits to run as an express service on the route Madras to Chidambaram.
107 applications were received in response to the said notification; some of these were rejected as time barred or otherwise defective, and the others which were in order were examined by the Authority.
On the 8th May, 1957, the Authority found that Provincial Transport (Private) Ltd., Madras, was the most suitable amongst the applicants and granted one permit to it.
As regards the second permit, the Authority held that none of the other applicants was suitable, and so, it refused to grant the said permit to anyone of them:it decided to call for applications afresh under section 57(2) of the Act.
Against this order, appeals were preferred by 18 claimants for permits before the State Transport Appellate Tribunal (hereinafter called "the Appellate Tribunal); amongst them was the appellant Syed Yakoob and respondent No. 1 K.S. Radhakrishnan.
The Appellate Tribunal confirmed the grant of the first permit to the Provincial Transport (Pvt.) Ltd: and so Car as the second permit was concerned, it allowed the appeal preferred by the appellant and directed that the said second permit should be issued to him; respondent No. 1 's claim for the said permit was accordingly rejected.
This order was passed on the 7th July, 1958.
The validity of this order was challenged by respondent No. 1 by his writ petition No. 44 of 1959 11led in the High Court of Madras.
Srinivasan J., who heard the writ petition held that th e Tribunal had overlooked material considerations in deciding the question of the grant of the second permit and allowed considerations not germane to the question to vitiate its order.
That is why the rule issued on the writ petition filed by respondent No. 1 was made absolute.
68 This order was challenged by the appellant before a Division Bench of the said High Court by an appeal preferred under Clause 15 of the Letters Patent.
The Division Bench has held that the order passed by Srinivasan J. could be sustained on the ground that the Appellate Tribunal had overlooked material considerations in favour of respondent No. 1, and so, 'it has affirmed the decision of the learned single Judge on that ground alone.
In regard to the finding of the learned single Judge that an.
irrelevant consideration had vitiated the finding of the Appellate Tribunal, the Division Bench held that the consideration in question was not irrelevant, and so, it differed from the view taken by Srinivasan J.
In the result, the appeal preferred by the appellant before the Division Bench was dismissed.
It is against this order that the appellant has come to this Court by special leave and to his appeal he has impleaded respondent No. 1 and has added the Authority and the Appellate Tribunal as respondents 2 and 3 Mr. Setalvad for the appellant contends that in issuing a writ of certiorari in respect of the impugned order passed by the Appellate.
Tribunal, the High Court has clearly exceeded its jurisdiction under article 226 of the Constitution.
In our opinion.
this contention is well founded and must be accepted.
The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under article 226 has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt.
A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals; these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or in excess of it, or as a result of failure to exercise jurisdictions.
A writ can similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the 69 dispute is opposed to principles of natural justice.
There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court.
This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as a result of the appreciation of evidence cannot be reopened or questioned in writ proceedings.
An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of tact, however grave it may appear to be.
In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the.
Tribunal had.
erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding.
Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari.
In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was ' insufficient or inadequate to sustain the impugned finding.
The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ court.
It is within these limits that the jurisdiction conferred on the High Courts under article 226 to issue a writ of certiorari can be legitimately exercised (vide Hari Vishnu Kamath vs Syed Ahmed Ishaque(1), Nagendra Nath Bora vs The Commissioner of Hills Division and Appeals, Assam(2), and Kaushalya Devi vs Bachittar Singh(3).
It is, of course, not easy to define or adequately describe what an error of law apparent on the face of (1) ; (2) ; (3) A.I.R. 1960 S.C. 1168.
70 the record means.
What can be corrected by a writ has to be an error of law; but it must be such an error of law as can be regarded as one which is apparent on the face of the record.
Where it is manliest or clear that the conclusion of law recorded by an inferior Court or Tribunal is based on an obvious mis interpretation of the relevant statutory provision, or sometimes in ignorance of it, or may be, even in disregard of it, or is expressly rounded on reasons which are wrong in law, the said conclusion can be corrected by a writ of certiorari.
In all these cases, the impugned conclusion should be so plainly inconsistent with the relevant statutory provision that no difficulty is experienced by the High Court in holding that the said error of law is apparent on the face of the record.
It may also be that in some cases.
the impugned error of law may not be obvious or patent on the face of the record as such and the Court may need an argument to discover the said error; but there can be no doubt that what can be corrected by a writ of certiorari is an error of law and the said error must, on the whole, be of such a character as would satisfy the test that it is an error of law apparent on the face of the record.
If a statutory provision is reasonably capable of two constructions and one construction has been adopted by the inferior Court or Tribunal, its conclusion may not necessarily or always be open to correction by a writ of certiorari.
In our opinion, it is neither possible nor desirable to attempt either to define or to describe adequately all cases of errors which can be appropriately described as errors of law apparent on the face of the record.
Whether or not an impugned error is an error of law and an error of law which is apparent on the face of the record, must always depend upon the facts and circumstances of each case and upon the nature and scope of the legal provision which is alleged to have been misconstrued or contravened.
In the present case, the question raised by the appellant presents no difficulty whatever.
The point which was raised before the High Court by respondent 71 No. 1 lies within a very narrow compass; it is a very short and simple question of fact.
It appears that in dealing with the rival claims of the appellant and respondent No. 1 for the second permit on the route in question, the Appellate Tribunal was ultimately influenced by the fact that the appellant had a workshop at Madras which is one terminus of the route in question, whereas respondent No. 1 had a workshop and a place of business only at Cuddalore which is an intermediate station on the route and did not possess a workshop at either of the terminii of the route; the other terminus being Chidambaram.
In fact, that appears to be the effect of the finding made by the Authority also.
Respondent No. 1 urged before the High Court that in coming to the conclusion that he had no workshop at Chidambaram, the Appellate Tribunal had failed to consider material evidence adduced by him.
It is on this narrow ground that a writ has been issued in favour of respondent No. 1.
Mr. Setalvad contends that the question as to whether respondent No. 1 had a workshop at Chidambaram is a pure question of fact and the High Court had no jurisdiction to interfere with the finding recorded by the Appellate Tribunal and seek to correct it by issuing a writ of certiorari.
In this connection, he relies on the fact that both the Authority and the Appellate Tribunal have, in substance, found that respondent No. 1 had no workshop at either of the two terminii on the route and the fact that no reasons have been given in support of the said finding would not justify the interference of the High Court in its jurisdiction under article 226.
It may be conceded that it would have been better if the Appellate Tribunal had indicated why it rejected the case of respondent No. 1 in regard to his alleged workshop at Chadambaram, but we do not think that the failure of the Appellate Tribunal to give a reason in that behalf, or to refer specifically to the evidence adduced by respondent No.1, would, by itself, constitute such an error in its decision as to justify the issue of a writ of certiorari under article 226.
In this connection, we ought to add that it has not been suggested by 72 respondent No. 1 that in dealing with his claim for a permit, admissible evidence which he wanted to adduce had been excluded by the Tribunal from the record;the argument that some evidence was not duly considered by the Tribunal, would normally pertain to the realm of the appreciation of evidence and would, as such, be outside the purview of an enquiry in proceedings for a writ of certiorari under article 226.
It appears that when respondent No. 1 applied for the permit, he sent a letter dated 11th July, 1956, in which he had stated that he had a workshop at Chidambaram and that he was running it in order to maintain the service efficiently and without any breakdown whatsoever.
The argument is that this letter has not been challenged by any party to the proceedings and has been completely ignored by the Authority and the Appellate Tribunal when they reached the conclusion that respondent No. 1 did not possess a workshop at Chidambaram.
As we have already pointed out, neither the Authority nor the Appellate Tribunal has given reasons in support of the findings of fact recorded by it; but the said fact alone does not, in our opinion, justify the conclusion of the High Court that the letter in question had not been considered by the said Authorities, and so, the High Court was not right in issuing a writ of certiorari on that basis alone.
But apart from this aspect of the matter, the record shows that the assertion of respondent No. 1 that he had a workshop at Chidambaram was contradicted by one of the claimants for a permit and is entirely inconsistent with the reports submitted to the Authority and the Appellate Tribunal by the department.
D. Kanniah Pillai, one of the applicants for the permit, had specifically averred in his application that the other applicants amongst whom respondent No. 1 was included, were all for away from the Headquarters having no workshop at Chidambaram.
Thus, it would not be right to assume that the claim made by respondent No. 1 that he had a workshop at Chidambaram was not disputed by any other competitor.
73 What is more significant, however, is the evidence supplied by the report made by the Regional Transport Officer, South Arcot.
This report is made under different columns.
Column 4 speaks about the possession of workshop or repair or maintenance facilities and its location.
The report is made in respect of each one of the applicants.
In regard to respondent No. 1 under column 4, the report shows that he was maintaining a workshop as per Government Order at Cuddalore, and column 5 speaks about the location of his residence or place of business as Cuddalore.
A similar report has been submitted about the appellant and that shows that the appellant had workshop facilities at Madras and that he had a residence and place of business at the terminus.
When the present dispute went before the Appellate Tribunal, a fresh report appears to have been called for, and this report which has been made by the Secretary, State Transport Authority, also shows that respondent No. 1 had a workshop at Cuddalore on the route, whereas the appellant had a workshop at Madras.
It would thus be clear that on the question as to whether respondent No. 1 had a workshop at Chidambaram, there was his own assertion stating that he had such a workshop.
and there were the two reports made by the Transport Officers which contradicted the said assertion; the said assertion was also challenged by one of the applicants.
" On this state of the record, it was, we think, not permissible to the High Court to consider these questions of fact and to hold that the finding recorded by the Appellate Tribunal was a finding without any evidence.
To say that material considerations were ignored by the Appellate Tribunal in holding that respondent No. 1 did not own a workshop a.t Chidambaram would be plainly unreasonable when it is remembered that the evidence disclosed a sharp conflict between the versions of the parties, and the version of respondent No. 1 was inconsistent with the reports made by the Transport Officers which must have been treated as more reliable by the Appellate Tribunal.
There 74 can be little doubt that if respondent No. 1 had owned a workshop at Chidambaram, it would have been mentioned in col. 4, because the said column is obviously intended to indicate all places where the claimant owns a workshop and possesses repair facilities.
It appears that before Srinivasan J. the appellant 's learned counsel conceded that the allegation made by respondent No. 1 that he owned a workshop at Chidambaram had not been challenged before the Transport Authorities, and naturally Srinivasan J. was considerably impressed by the said concession; but as the Division Bench which heard the Letters Patent Appeal has pointed out, the said concession was not correctly made; in fact, the record distinctly shows that the claim made by respondent No. 1 was challenged by one of the applicants for permit and was plainly inconsistent with the reports to which we have just referred.
Therefore, the concession on which Srinivasan J., relied has been properly left out of account by the Division Bench in dealing with the appeal.
The Division Bench thought that apart from the said concession, it did appear that the Appellate Tribunal had overlooked the claim made by respondent No. 1 in his letter of the 11 th July, 1956.
As we have already indicated, we find it difficult to sustain this finding.
In our opinion, apart from the fact that the plea raised by respondent No. 1 could not be validly raised under article 226, even on the merits the said plea is not well founded.
The question on which respondent No. 1 sought for the intervention of the High Court under article 226 was a simple question of fact, and we are satisfied that on that question of fact, the Appellate Tribunal was justified in coming to the conclusion that the claim made by respondent No. 1 about the existence of a workshop at Chidambaram was not well founded; but even if the said finding did not appear to the High Court to be satisfactory, that would be no reason for issuing a writ under article 226.
There was evidence in support of the finding of the Appellate Tribunal and it is not a 75 case where the finding is based on no evidence at all.
We ought also to add that though the Division Bench was satisfied that the concession on which Srinivasan J., substantially acted had been wrongly made before him, its attention does not appear to have been drawn to the reports made by the Transport Officers to which we have just referred.
We have no doubt that if the Division Bench had taken into account those reports, it would have hesitated to confirm the finding made by Srinivasan J.
It appears that Srinivasan J., was inclined to take the view that the decision of the Appellate Tribunal was vitiated by the fact that it took into account certain irrelevant considerations.
The Division Bench has held that the said considerations cannot be said to be irrelevant.
These considerations centre round the question as to whether preference should be given to an applicant for permit who has his headquarters at the terminus as against another who has only a branch office at the said terminus.
The practice usually followed by the Tribunals under the Act appears to be to give one mark under col. 3 to the applicant who has his headquarters at the terminus and give only 1/2 mark to an applicant who has only a branch office at the terminus.
Having held that the consideration on which marks are thus allotted cannot be said to be irrelevant, the Division Bench has indicated that the policy underlying the said practice may be open to doubt.
In our opinion, it would have been better if the Division Bench had not expressed any opinion on this aspect of the matter, particularly when it came to the conclusion that the said matter was primarily for the decision of the Appellate Tribunal.
Mr. Pathak for respondent No. 1 has relied on a recent decision of this Court in K.M. Shanmugam vs The S.R.V.S. (P) Ltd.(1) in support of his contention that the error committed by the Appellate Tribunal really amounted to a contravention of section 47 of the Act.
He argues that the Appellate Tribunal was (1) ; 76 under an obligation, in considering the question about the grant of a permit, to take into account the interests of public generally under section 47(a) and inasmuch as the Appellate Tribunal has ignored the fact that 'respondent No. 1 owns a workshop at Chidambaram and thereby has refused his application for a permit, the interests of the,public generally have been sacrificed.
This argument prima facie appears to be far fetched and fanciful; but Mr. Pathak urges that the observations made by this Court in the case of K.M. Shanmugum are in his favour.
In our opinion, the said decision does not lend any assistance to Mr. Pathak 's contention.
In that case, this Court was satisfied that "the Tribunal made a clear error of law inasmuch as it held that in the case of the first respondent, as it had a branch at Kumbakonam, its other branch at Manmargudi should be ignored.
" The judgment shows that this Court took the view that it was obviously an untenable proposition to hold that even if a company has a well equipped office on a route in respect of which a permit is applied for, it shall be ignored if the company has some other branch somewhere unconnected with that route, and it was observed that was precisely what the Appellate Tribunal had held and that, according to the Court, clearly was an error apparent on the face of the record.
It is in that connection that this Court referred to the mandatory provisions of section 47.
We do not think that this decision can be legitimately pressed into service by Mr. Pathak in the present case.
It is only after it is proved that respondent No. 1 had a workshop at Chidambaram that any subsequent question about the interests of the public generally can possibly arise.
If, as in the present case, the Appellate Tribunal has held that respondent No. 1 did not own a workshop at Chidambaram, no consideration of public interests can arise at all, and it is with this question that the present writ proceedings are concerned.
We ought to add that the decision in the case of K.M. Shanmugam cannot justify a party whose application for permit has been rejected by the authorities under the Act, to move the High 77 Court under article 226 and invite it to consider all questions of fact on the plea that the decision on the said questions of fact may assist him to invoke the provisions of section 47.
That clearly is not the effect of the said decision.
Mr. Pathak has also urged that even if we come to the conclusion that the High Court was not competent to issue a writ in the present proceedings, having regard to the nature of the questions raised before it by respondent No. 1, we should not reverse the decision of the High Court under article 136 of the Constitution.
The jurisdiction of this Court under article 136, though very wide, is exercised by the Court in its discretion, says Mr. Pathak, and he contends that where the order under appeal furthers the ends of justice, we should not reverse the said order on technical grounds.
We are not impressed by this plea.
It may be conceded that in a proper case this Court may refuse to exercise its jurisdiction under article 136 where the interests of justice patently indicate the desirability of adopting such a course; but we do not see how a plea of such a kind can be entertained where it is clearly shown that the impugned orders passed by the High.
Court are without jurisdiction.
If Mr. Pathak 's argument were to be accepted, in a majority of cases if the High Court interfered with questions of fact in issuing writs of certiorari against the decisions of special Tribunals, it may always be urged that what the High Courts have done is in the interests of justice and this Court should not interfere with the decisions of the High Courts.
In the circumstances of the present case, we do not see how considerations of justice can really arise.
The Tribunals of fact have found that respondent No. 1 does not own a workshop at Chidambaram and having regard to the other relevant circumstances which the Tribunals have considered, the fact that he does not own a workshop at Chidambaram has ultimately proved decisive against respondent No. 1 and in favour of the appellant.
If that be so, a decision based on facts found by the 78 Tribunal cannot be reopened on the plausible plea that a further enquiry should be made because that would be just.
If findings of fact were allowed to be disturbed by High Courts in such writ proceedings, that may lead to an interminable search for correct findings and would virtually convert the High Courts into Appellate Courts competent to deal with questions of fact.
That is why we think, in entertaining petitions for writs of certiorari, it is necessary to remember that findings of fact recorded by special Tribunals which have been clothed with jurisdiction to deal with them, should be treated as final between the parties, unless, of course, it is shown that the impugned finding is based on no evidence.
Therefore, we do not think the plea made by Mr. Pathak that in the interests of justice we should refrain from setting aside the order under appeal, can be upheld.
There is one more point to which reference must be made.
It appears that in the writ petition filed by respondent No. 1 he claimed that the orders passed by the Authority and the Appellate Tribunal should be set aside, and a rule was issued in terms of the prayer made in the said petition.
Ultimately, the said rule has been made absolute.
It is obvious that in the writ petition, respondent No. 1 did not challenge the grant of the permit to the ' Provincial Transport (Pvt.) Ltd., but unfortunately, having regard to the prayer made by respondent No. 1 in his writ petition, the orders ultimately passed in the said proceedings ,may, if technically construed, mean that the orders of the Authority as well as the Appellate Tribunal have been set aside and that clearly was not and could not have been the intention of the High Court in issuing the writ.
It would, we think, be better if in issuing a writ on a writ petition and in making it absolute in case the writ petition succeeds, care is taken to draw the order more accurately.
The result is, the appeal is allowed, the order passed by the High Court is set aside and the writ 79 petition filed by respondent No. 1 is dismissed; Respondent 1 to pay the cost of the appellant in this Court.
Mr. Ranganathan Cherry who appears for respondents 2 and 3 has asked for his costs.
We do not think this request can be accepted.
It may be that in such proceedings, the Authority and the Appellate Tribunal are proper and necessary parties, but unless allegations are made against them which need a reply from them, it is not usual for the authorities to be represented by lawyers in Court.
In ordinary cases, their position is like that of courts or other Tribunals against whose decisions writ proceedings are filed; they are not interested in the merits of the dispute in any sense, and so, their representation by lawyers in such proceedings is wholly unnecessary and even inappropriate.
That is why we direct that respondents 2 and 3 should bear their own costs.
SUBBA RAO J. I have had the advantage of perusing the judgment of my learned brother, Gajendragadkar J.
I cannot agree.
The facts lie in a small compass and they are as follows:The State Transport Authority, Madras, called for applications for the grant of two stage carriage permits on the route Madras to Chidambaram.
107 applications were received by the said Authority.
The appellant and the first respondent are two of the said applicants.
The State Transport Authority gave one of the permits to the Provincial Transport (Private) Limited, Madras: we are not concerned with this permit.
As regards the second permit, the said Authority found none of the applicants suitable and, therefore, refused to grant the same to any one of them and directed fresh applications to be called for.
Against the said order, the appellant, first respondent and others preferred appeals to the State Transport Appellate Tribunal.
The appellant herein was respondent 16 and respondent herein was appellant 7 before the said Appellate Tribunal.
The first respondent secured the highest total marks, viz., 71/2 , under columns 1 to 5 under the scheme of marking sanctioned by the State Government.
The appellant got only 41/2 marks.
Ignoring the highest total of 80 marks secured by the first respondent, the Appellate Tribunal rejected his claim on the ground that he had his workshop and place of business en route at Cuddalore and not at either of the terminii of the route.
Excluding the first respondent, the Appellate Tribunal, for the reasons mentioned in the order, preferred the appellant in a competition between him and appellant 14 before the Tribunal.
The main ground of preference was that the appellant had got his workshop in the headquarters at Madras.
In file result, the Appellate Tribunal rejected the application of the first respondent and gave the permit to the appellant.
The first respondent filed a writ petition under article 226 of the Constitution in the High Court Judicature at Madras for the issue of a writ of certiorari for quashing the order of the said Tribunal.
The said petition was heard by Srinivasan J., and he quashed the order of the Appellate Tribunal mainly on the ground that the Tribunal did not take into consideration a material and relevant circumstance to the enquiry before it, namely, that the petitioner had the necessary repair and maintenance facilities at Chidambaram, one of the terminii of the route in question.
In that view the learned Judge quashed the order of the Appellate Tribunal.
On Letters Patent Appeal, a Division Bench of the High Court, consisting of Ramachandra Iyer C.J., and Venkataraman J., held that the learned Judge should not have given a finding on the question whether the first respondent had the above said facilities at Chidambaram, but agreed with him that the Appellate Tribunal had overlooked the claim made by the first respondent to the effect that he had such facilities at Chidambaram.
Hence the appeal.
Mr. Setalvad, learned counsel appearing for the appellant, contended that the Appellate Tribunal had held on the material placed before it that the, first respondent had no such facilities at the terminal and that, therefore, the High Court had n0 jurisdiction to interfere with the finding of fact arrived at by the Appellate Tribunal.
81 Mr. Pathak, learned counsel for the first respondent, argued that though the first respondent clearly stated in his letter dated July 11, 1956, to the Transport Authority that he had such facilities, the State Transport Authority as well as the State Transport Appellate Tribunal had ignored that material circumstance which was germane to the question of public interest under section 47 of the , and, therefore, the High Court had rightly quashed that order under article 226 of the Constitution and directed the Tribunal to dispose of the appeal on merits.
Alternatively he contended that though there might be some material for the Appellate Tribunal to come to the conclusion that the first respondent had no such facilities, three learned Judges of the High Court, on the admissions made and the material placed before them, have held that the Tribunal did not decide that question and that they only gave a further opportunity to the Appellate Tribunal to decide the appeal on merits and that in the circumstances it is not a fit case for this Court to interfere under article 136 of the Constitution.
The first respondent has a fundamental right to carry on business in transport.
The is a law imposing reasonable restrictions in public interests on such right.
Under section 47 of the said Act the Regional Transport Authority shall in considering an application for a stage carriage permit, have regard, inter alia, to the interests of the public generally.
The fact that the first respondent has a separate workshop or at any rate has the necessary repair and maintenance facilities at one of the terminii of the route, viz., at Chidambaram, is certainly a consideration germane to the question of public interest.
Indeed, the scheme of marking system suggested by the Government also recognizes the importance of such facilities at either of the terminii of the route.
If the first respondent had placed before the authorities concerned the said circumstance in support of his claim for a permit and if that was ignored or not investigated into by the said authorities, the High Court would certainly 1 SCI/64 5 82 have jurisdiction under article 226 of the Constitution to quash the order of the authorities and direct them to ascertain whether the claim of the first respondent was true, and if it was true, to take that into consideration before issuing the permit to one or other of the claimants before them.
In such an event the High Court would not be interfering with the finding fact arrived at by the Appellate Tribunal based on the material placed before it, but would only be quashing the order on the ground that an important and material circumstance was ignored or not investigated into by the Tribunal.
If a Tribunal ignores or fails to investigate a material circumstance put forward by a claimant and gives a finding against him, the said finding can certainly be said to be vitiated by an error of law apparent on the face of the record.
In the present case, the State Transport Authority was considering the competing claims of 107.
persons for two permits.
The said Authority gave its decision on May 8, 1957.
The first respondent filed his application for a permit on July 11, 1956.
On the same day he addressed a letter to the said Authority to the following effect: "Chidambaram is one of the terminii of this proposed route.
A separate office and workshop are located at Chidambaram in order to maintain the service efficiently and without any breakdown or whatsoever.
" None of the innumerable applicants in his application denied specifically the c|aim of the first respondent that he had a separate office and workshop at Chidambaram.
This fact was conceded before Srinivasan J., though the learned judge put the concession somewhat higher than was actually made.
Nor did the learned counsel for the appellant go back on the limited concession before the Division Bench.
But one Kanniah Pillai, who was applicant No. 43 D), stated in his application thus: "The applicant Nos. 43, 57, 69, 78 and 81 are residents of Chidambaram but No. 57 is a fleet 83 owner.
69 and 78 have no workshop.
No. 81 is a new entrant.
The rest all are far away from the headquarters having no workshop at Chidambaram.
" Except this vague and implied denial by Kanniah Pillai, there is nothing on the record to suggest that any other applicant denied the claim of the first respondent.
The fact remains that the appellant did not at any stage of the proceedings refute the claim of the first respondent.
With this background let me first look at the order of the State Transport Authority,.
The said Authority has ignored the said letter of the first respondent claiming to have a workshop at Chidambaram, but it stated in an omnibus clause that the first respondent and some of the other applicants were residents either in the middle or off the route and they were not so well situated as an applicant who had facilities at one end of the route with all the necessary facilities.
It may be stated that this is an implied finding against the first respondent, but the complaint of the first respondent is that it is made in utter disregard of his claim.
So too, the Appellate Tribunal observed in its order disposing of the 18 appeals before it that the first respondent, who had secured the highest number of marks, including those column 1 of the mark list, 'had his workshop and place of business en route at Cuddalore and not at either of the terminii of the route.
This observation was also made in utter disregard of the claim made by the first respondent that he had a workshop Chidambaram, one of the terminii of the route, and though the other applicants, except one, had not denied the said fact.
The High Court, therefore, found on the material placed before it that the said Authority as well as the Tribunal had failed to consider the specific claim made by the.
first respondent in regard to his work.shop at Chidambaram and, therefore, rightly set aside the order of the Appellate Tribunal so that the Appellate Tribunal might consider the claim made by the first respondent.
I 84 do not see any flaw in the reasoning of the High Court.
Nor can I say that it has exceeded its jurisdiction under article 226 of the Constitution.
But, Mr. Setalvad. contended that there was material before the Tribunal and that the Tribunal gave its finding on the basis of that material.
He relied upon an extract from the report of the Regional Transport Authority, South Arcot, dated January 31, 1957.
That was a report sent by the said Authority to the State Transport Authority.
Against the name of the first respondent in column 4 under the heading "possession of workshop or repair or maintenance facilities and its location" it is stated, "maintaining a workshop at per G.O. at Cuddalore".
Again in the report sent by the State Transport Authority to the State Transport Appellate Tribunal, against the name of the first respondent in column 8 under the heading "Place of residence or principal place of business and the nearest distance" the entry is "Cuddalore on the route".
This information given by the Transport Authority is presumably gathered from the earlier report of the.
Regional Transport Authority.
Reliance is placed upon a letter dated January 10, 1957, written by the first respondent to the Secretary, State Transport Authority, in support of the contention that even the first respondent, though on July 111, 1956, he claimed to have had a workshop at Chidambaram, did not mention it therein.
But a perusal of that letter shows that he did mention that he had the sector and terminal qualifications.
Basing the argument on the said documents, it was contended that there was material on which the Appellate Tribunal could have come to the finding which it did, viz., that the first respondent had no workshop at either of the terminii of the route.
Firstly, these documents were not expressly relied upon by the Tribunal for holding that the first respondent had no workshop at Chidambaram.
Secondly, these documents were not relied upon by the appellant either before Srinivasan J., or before the Division Bench to the effect that the Appellate Tribunal gave a finding on the basis of the 85 said material.
Thirdly, one of the said documents, viz., the letter of the first respondent, does not support the contention.
The other two reports did not say that the first respondent had no workshop at Chidambaram.
The officers who made the report did not make any enquiry as regards the fact whether the first respondent had a workshop at Chidambaram on the basis of the claim made by him.
There is, therefore, absolutely no evidence to controvert the first respondent 's claim and that is the reason why the appellant did not place the said documents before the High Court in support of his contention that there was material before the State Transport Authority and the State Transport Appellate Tribunal for holding that the first respondent had no workshop at Chidambaram.
A perusal of the two orders shows that presumably in view of the innumerable applications, the specific claim of the first respondent was completely missed by the Transport Authority and the Appellate Tribunal.
This is, therefore, a clear case of a finding made by the Tribunal without any evidence to support it and by ignoring a specific claim made before it.
I am, therefore, of opinion that the High Court rightly set aside the order of the Appellate Tribunal.
The next question is whether this is a fit case for interference under article 136 of the Constitution in exercise of this Court 's extraordinary jurisdiction thereunder.
Srinivasan J., and, on appeal, the Division Bench on the basis of the material placed and the concession made before them, came to the conclusion that the Appellate Tribunal had ignored the specific claim set up by the first respondent.
The first respondent had secured the highest number of marks.
His claim, if substantiated, would certainly tilt the balance in his favour.
The material placed before us was not relied upon by the appellant before the High Court.
The High Court gave a further opportunity to the Appellate Tribunal to consider the claim of the first respondent.
Though the High Court quashed the order of the Tribunal, the observation in the judgment clearly shows that the Tribunal 86 could reconsider the matter.
Indeed, learned counsel for the first respondent conceded that fact.
The appellant would have every opportunity to establish that the first respondent has no workshop at Chidambaram.
Instead of following the straight course, he is trying to shut out further enquiry to arrive at the truth.
In the circumstances I am of the view that this is not a case which calls for the exercise of this Court 's extraordinary jurisdiction to set aside the order of the High Court.
In the result, the appeal fails and is dismissed with costs of the first respondent.
ORDER BY COURT In accordance with the opinion of the majority the appeal is allowed and the Writ Petition filed by Respondent No. 1 is dismissed.
Respondent No. 1 to pay the costs of the appellant in this Court.
Respondents 2 and 3 to bear their own costs.

summary/full:
The State Transport Authority issued a notification under the , calling for applications for the grant of two stage carriage permits for the route Madras to Chidambaram.
A large number of applications were received.
The authority granted the first permit to one of the applicants and for the second it decided to call for fresh applications.
The appellant, as also a number of other applicants, appealed to the State Transport Appellate Tribunal.
The Tribunal confirmed the grant of the first permit and as regards the second it allowed the appeal of the appellant and directed that it should be granted to him.
Respondent No. 1 moved the High Court under Art.226 of the Constitution for the issue of a writ of certiorari and the single Judge who heard the matter held that the Appellate Tribunal had overlooked relevant considerations, and allowed irrelevant considerations to prevail and so made the Rule absolute.
A Letters Patent appeal was preferred by the appellant.
The Division Bench affirmed the order of the single Judge on the ground that the Appellate Tribunal had overlooked material considerations in favour of the respondent No. 1 and dismissed the appeal The appellant came to this Court by special leave and it was contended on his behalf that in issuing the writ of certiorari the High Court exceeded its jurisdiction under article 226 of the Constitution.
Held: (per Gajendragadkar, Wanchoo, Shah and Dayal JJ.).
The contention raised on behalf of the appellant was well founded and must prevail.
A writ of certiorari is issued for correcting errors of jurisdiction committed by courts or tribunals, in cases where they exceed their jurisdiction or fail to exercise it or exercise it illegally or improperly, i.e. where an order is passed without hearing the party sought to be affected by it or where the procedure adopted is opposed to principles of natural justice.
The jurisdiction to issue a writ of certiorari is a supervisory one and in exercising it, the court is not entitled to act as a court of appeal.
That necessarily means that the findings of fact arrived at by the inferior court or tribunal arc binding.
65 An error of law apparent on the face of the record can, however, be corrected by a writ of certiorari, but not an error of fact however grave it may appear to be.
A writ of certiorari can also be issued if it is shown that in recording a finding of fact, admissible and material evidence has, not been admitted, or inadmissible evidence affecting the impugned finding has been admitted.
A finding of fact based on no evidence would also be an error of law and as Such amenable to such a writ.
But a finding of fact cannot be challenged in such a proceeding on the ground that the relevant and material evidence was insufficient to sustain the finding.
Adequacy or sufficiency of evidence or an inference of fact to be drawn from the evidence or finding of fact are entirely within the jurisdiction of the Tribunal.
Hari Vishnu Kamath vs Syed Ahmed Ishaque, ; , Nagendra Nath Bora vs The Commissioner of Hills Division and Appeals, Assam, ; and Kaushalya Devi vs Bachittar Singh, A.I.R. 1960 S.C. 1168, relied on.
It is neither possible nor desirable to define or describe all cases of errors which can be said to be errors of law apparent on the face of the record.
Whether or not an error is such an error would depend on the facts and circumstances of each case and the nature and scope of the law misconstrued or contravened.
It was not open to a party on the authority of the decision of this Court in K.M. Shanmugam vs
S.R.V.S. (P) Ltd., to come to the High Court under article 226 to have all questions of fact reconsidered so as to invoke the plea of 'public interest ' under section 47 of the .
K. M. Shamnugam vs S.R.V.S. (P) Ltd., 1 [1964] 1 S.C.R. 809, held inapplicable.
In the present case the controversy centered round the fact whether the respondent No. 1 had a workshop at Chidambaram, one of the two terminii of the route and that the tribunal had failed to duly consider some evidence in that connection.
That argument was an argument related to appreciation of evidence and as such was outside the purview of a proceeding for a writ of certiorari.
The High Court was therefore, in error in issuing the writ of certiorari.
In issuing a writ and in making it absolute, care should be taken to draw the order accurately.
Unless allegations are made against them, the State Transport Authority or the Appellate Tribunal should not be represented through lawyers.
Their position in ordinary cases is just the same as that of courts and other tribunals.
Per Subba Rao J. Where the tribunal ignores or fails to investigate a material circumstance germane to a question of public 1 SCI/64 5 66 interest under section 47 of the Act put forward by a claimant for permit and gives a finding against him, that finding is vitiated by an error of law apparent on the face of the record and is liable to be quashed by a writ of certiorari.
and the Appellate Tribunal failed to consider the specific claim of the respondent 1 as to the existence of his workshop at Chidambaram and was, therefore, right in setting aside their orders.
The High Court could not be said to have exceeded its jurisdiction under article 226 of the Constitution.
This was a clear case where the Tribunal made a finding that was based on no evidence and was contrary to the specific claim made before it.
Since the first respondent had secured the highest number of marks, this claim, if substantiated, would tilt the balance in his favour.
This Court would not interfere in such a matter in the exercise of its extraordinary jurisdiction under article 136 of the Constitution to set aside the High Court 's order.