judgement:
o. 115 of 1956, and Petition No. 132 of 1956.
Petitions under Article 32 of the Constitution of India for the enforcement of fundamental rights.
B. D. Sharma, for the petitioners.
C. K. Daphtary, Solicitor General of India, Porus A. Mehta and R. H. Dhebar, for the respondents, 651 1957.
February 13.
The Judgment of the Court was delivered by section K. DAS J.
These two petitions for the issue of appropriate writs restraining the respondents from prosecuting and trying the two petitioners 'on certain criminal charges in circumstances to be presently stated, raise the same question of law and have been heard together.
This judgment will govern them both.
Baij Nath Prasad Tripathi, petitioner in Petition No. 115 of 1956, was a Sub inspector of Police in the then State of Bhopal.
He was prosecuted in the Court of Shri B. K. Puranik, Special Judge, Bhopal, and convicted of offences under section 161, Indian Penal Code, and section 5 of the Prevention of Corruption Act, 1947.
He was sentenced to nine months ' rigorous imprisonment on each count.
He preferred an appeal against the conviction and sentences to the Judicial Commissioner of Bhopal.
The Judicial Commissioner held by his judGment dated March 7, 1956, that no sanction according to law had been given for the prosecution of the petitioner and the Special JudGe had no jurisdiction to take cognizance of the case; the trial was accordingly ab initio invalid and liable to be quashed.
He accordingly set aside the conviction and quashed the entire proceedings before the Special Judge.
He then observed: "The parties would thus be relegated to the position as if no legal charge sheet had been submitted against the appellant." On April 4, 1956, the Chief Commissioner of Bhopal passed an order under section 7(2) of the Criminal Law Amendment Act, 1952 (No. XLVI of 1952) that the petitioner shall be tried by Shri section N. Shri vastava, Special Judge, Bhopal, for certain offences under the Prevention of Corruption Act read with section 161, Indian Penal Code.
The case of the petitioner is that he cannot be prosecuted and tried again for the same offences under the aforesaid order of April 4, 1956.
Sudhakar Dube, petitioner in Petition No. 132 of.
1956, was also a Sub Inspector of Police in the then State of Bhopal.
He was also prosecuted in the Court of Shri B. K. Puranik, Special Judge, Bhopal, on a 84 652 charge of having accepted illegal gratification for showing official favour to one Panna Lal.
The learned Special Judge by an order dated January 10, 1956, came to the conclusion that no legal sanction for the prosecution of the petitioner had been given by the competent authority and the sanction given by the Inspector.
General of Police was not valid in law; he therefore held that the whole trial was null and void and he could not take cognizance of the offences in question.
Accordingly he quashed the proceedings.
On February 7, 1956, the Chief Secretary to the Government of Bhopal accorded fresh sanction for the prosecution of the petitioner for offences under section 161, Indian Penal Code, and section 5 of the Prevention of Corruption Act.
The petitioner then moved this Court for appropriate writs restraining the respondents from prosecuting and trying him for the offences stated in the fresh sanction aforesaid.
On behalf of both the petitioners the contention is that by reason of cl.
(2) of article 20 of the Constitution and section 403 of the Code of Criminal Procedure, the petitioners cannot now be tried 'for the offences in question.
It is necessary to read here some of the relevant sections bearing on the point at issue.
Section 6 of the Criminal Law Amendment Act, 1952 (prior to the amendment made in 1955), so far as is relevant for our purpose, is in these terms : "6.
(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 Co try the following offences, namely: (a) an offence punishable under section 161, 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 (II of 1947); (b) any conspiracy to commit or any attempt to commit or any abetment of any of the offences specified in clause (a" '.
Sub section (1) of section 7 of the same Act lays down: "7.
(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (Act V of 1898) or in 655 any other law the offences specified in subsection (I of section 6 shall be triable by special Judges only".
The same section also states that when trying any case, a special Judge may also try any offence other than an offence specified in section 6 with which the accused may, under the Code of Criminal Procedure, 1898, be charged at the same trial.
It is not necessary for our purpose to read the other sections "of the Criminal Law Amendment Act, 1952.
We then go to the Prevention of Corruption Act, 1947, section 6 whereof is relevant for our purpose.
That section is in these terms: " 6.
(1) No Court shall, take cognizance of an offence punishable under section 16l or section 165 of the Indian Penal Code or under sub section (2) of section 5 of this Act, alleged to have been committed by a public servant except with the previous sanction,(a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government. . [of the] Central Government; (b) in the case of a person who is employed in connection with the affairs of [a State] and is not removable from his office save by or with the sanction of the State Government. . . [of the] State Government; (c) in the case of any other person, of the authority competent to remove him from his office.
(2) Where for any reason whatsoever any doubt arises whether the previous sanction as required under sub section (1) should be given by the Central or State Government or any other authority, such sanction shall be given by that Government or authority which would have been competent to remove, the public servant from his office at the time when the offence was alleged to have been committed.
" It is under this section that sanction was necessary for the prosecution of the petitioners.
Clause (2) of article 20 of the Constitution, on which the petitioners rely, states: 654 "No person shall be prosecuted and punished for the same offence more than once.
" Section 403 (1) of the Code of Criminal Procedure, on which learned counsel for the petitioners has placed the greatest reliance, is in these terms: " A person who has once been tried by a Court of competent jurisdiction for ail offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under section 236, or for which he might have been convicted under section 237." Now, it is necessary to state that the point taken by learned counsel for the petitioners is really concluded by three decisions (a) one of the Privy Council,(b) another of the Federal Court and (c) the third of this Court itself.
The Privy Council decision is in Yusofalli Mulla vs The King (1); the Federal Court decision in Basdeo Agarwalla vs King Emperor (2) ; and the decision of this Court (not yet reported) was given in Budha Mal vs State of Delhi (3) on October 3, 1952.
The Privy Council decision is directly in point, and it was there held that the whole basis of section 403 (1) was that the first trial should have been before a Court competent to hear and determine the case and to record a verdict of conviction or acquittal; if the Court was not so competent, as for example where the required sanction for the prosecution was not obtained, it was irrelevant that it was competent to try other cases of the same class or indeed the case against the particular accused in different circumstances, for example if a sanction had been obtained.
So is the decision of this Court where the following observations were made with regard to the point in question: " Section 403, Criminal Procedure Code, applies to cases where the acquittal order has been made by a Court of competent jurisdiction but it does not bar (1) A.I.R. 1949 P.C. 264.
(2) (3) Criminal Appeal No. 17 Of 1952 decided on October 3, 1952.
655 a retrial of the accused in cases where such an order has been made by a court which had no jurisdiction to take cognizance of the case.
It is quite apparent on this record that in the absence of a valid sanction the trial of the appellant in the first instance was by: a magistrate who had no jurisdiction to try him.
" After the pronouncements made in the decisions referred to above, it is really unnecessary to embark on a further or fuller discussion of the point raised, except merely to state that we have heard learned counsel for the petitioners who made a vain attempt with a crusading pertinacity worthy of a better cause, to show that the Privy Council decision was wrong and the decision of this Court required reconsideration, and having heard learned counsel in full, we are of the view that the decisions referred to above state the legal position correctly.
It is clear beyond any doubt that el.
(2) of article 20 of the Constitution has no application in these two cases.
The petitioners are not being prosecuted and punished for the same offence more than once,, the earlier proceedings having been held to be null and void.
With regard to section 403, Code of Criminal Procedure, it is enough to state that the petitioners were not tried, in the earlier proceedings, by a Court of competent jurisdiction, nor is there any conviction or acquittal in force within the meaning of section 403.
(1) of the Code, to stand as a bar against their trial for the same offences.
Learned counsel for the petitioners invited our attention to sections 190, 191, 192, 529 and 530 of the Code of Criminal Procedure and submitted that in certain circumstances the Code drew a distinction between 'jurisdiction ' and I taking cognizance '.
The whole fabric of the argument of learned counsel was founded on this distinction.
Assuming, however, that in certain cases one Magistrate may take cognizance and another Magistrate may try an accused person, it is difficult to appreciate how any Court can try the petitioners of these cases in the absence of a sanction in view of the mandatory provisions of section 6 of the Prevention of Corruption Act, 1947.
If no Court can take cognizance of the offences in question without a legal sanction, it is obvious 666 that no Court can be said to be a Court of competent jurisdiction to try those offences and that any trial in the absence of such sanction must be null and void, and the sections of the Code on which learned counsel 1 for the petitioners relied have really No. bearing on the matter.
Section 530 of the Code is really against the contention of learned counsel, for it states, inter alia, that if any Magistrate not being empowered by law to try all offender, tries him, then the proceedings shall be void.
Section 529 (e) is merely an exception in the matter of taking cognizance of an offence under section 190, sub section
(1), cls.
(a) and (b); it has no bearing in a case where sanction is necessary and no sanction in accordance with law has been obtained.
As part of his arguments, learned counsel for the petitioners referred to certain observations made by Braund J. in a decision of the Allahabad High Court, Basdeo vs Emperor (1), where the learned Judge drew a distinction between 'taking cognizance ' and 'jurisdiction '.
The distinction was drawn in a case where a Magistrate duly empowered to commit cases to the Sessions Court committed ail accused person to the Court of Session in disregard of the provisions of section 254 of the Code of Criminal Procedure, and the question was whether the irregularity so committed rendered the Sessions Court incompetent to try the case.
The facts there were entirely different from the facts of the present cases and there was no occasion nor necessity for considering such mandatory provisions as are contained in section 6 of the Prevention of Corruption Act.
We do not think that the observations made in that case can be pressed in service in support of the argument of learned counsel for the petitioners in these cases, treating those observations as though they laid down any abstract propositions of law not dependent on the context of the facts in connection with which they were made.
Out of deference to learned counsel for the petitioners, we have indicated and considered very briefly the arguments advanced before us.
As we have said (1) A.I.R. T045 All.
657 before, the point is really concluded by decisions of the highest tribunal, decisions which correctly lay down the law.
The result therefore is that these petitions are devoid of all merit and must be dismissed.
Petitions dismissed.

dataset_name: IN-Abs

summary/full:
The accused was tried and convicted by a Special judge for offences under section 161 of the Indian Penal Code and section 5 of the Prevention of Corruption Act.
On appeal the whole proceedings were quashed as being ab initio invalid for want of proper sanction.
The authorities accorded fresh sanction and directed the accused to be tried by a Special judge for the same offences.
It was contended by the accused that the second trial was barred by article 20 (2) of the Constitution of India and by section 403 Of the Code of Criminal Procedure.
Held, that the trial was not barred.
article 20 (2) had no application in the case.
The accused was not being prosecuted and punished for the same offence more than once, the earlier proceedings having been held to be null and void.
The accused was not tried in the earlier proceedings by a Court of competent jurisdiction, nor was there any conviction or acquittal in force within the meaning of section 403(1) of the Code to stand as a bar against the trial for the same offence.
Yusofalli 'Mulla vs The King, A.I.R. (1949) P. C. 264, Basdeo Agarwalla vs King Emperor, and Budha Mal vs of Delhi, Criminal Appeal No. 17 Of 1952, decided on October 1952, followed.


judgement:
Civil Appeal No. 5274 (NL) of 1983.
160 Appeal by Special leave from the Judgment and Order dated the 4th March, 1982 of the Industrial Tribunal Haryana at Faridabad in Reference No. 79/80 published in Haryana Govt.
Gazette dated the 6th June, 1982.
AND Civil Appeal No. 5275 of 1983 Appeal by Special leave from the Judgment and Order dated the 16th day of August, 1982 of the Punjab and Haryana High Court in Writ Petition No. 3475 of 1983.
Ms. Chander Malhotra & Mrs. Indra Sawhney for the Appellant in both the Appeals.
K.B. Rohtagi for the Respondent in both the appeals.
The Judgment of the Court was delivered by CHINNAPPA REDDY, J.
Shri Phulel Singh had a savings account with the Naraingarh branch of the Ambala Central Co operative Bank Limited.
A cheque for Rs. 4200 purporting to have been signed by Shri Phulel Singh, drawn on the Ambala Central Co operative Bank was presented through the Punjab & Sind Bank Limited, Dhulkot and the proceeds were duly remitted to the latter bank.
The account of Shri Phulel Singh was debited with that amount.
Later when Shri Phulel Singh presented his pass book, appropriate entries were made.
Shri Phulel Singh objected to the entry relating to the debit of Rs. 4200.
He alleged that he had never issued the cheque for Rs. 4200 said to have been issued by him.
A complaint was also lodged with the police.
The present appellant, who was clerk cum cashier of the Naraingarh Branch of the bank, and who was apparently suspected in connection with the presentation of the bogus cheque, was interrogated by the police and his statement was also recorded.
A First Information Report was registered against him, but the case ended in discharge.
In the meanwhile, the Managing Committee of the bank placed the appellant under suspension.
Shri Hans Raj, an Assistant Manager was appointed to enquire into the matter in order to ascertain the genuineness of the complaint made by the customer.
The appellant was advised to be present at the Naraingarh branch of the bank on 161 July 29, 1974 in connection with the enquiry.
No chargesheet was ever issued to the appellant.
The statement of the appellant was however recorded by the enquiry officer on July 29, 1974 along with the statements of several other persons.
The enquiry officer submitted his report on August 21, 1974.
The finding of the enquiry officer may be extracted here.
It was as follows: "As a result of enquiry and on the basis of the points given in the report, there lies the possibility that the complaint of the applicant may be genuine.
" The enquiry officer thus indicated that there might be truth in the complaint of the customer that a bogus cheque was presented and his account debited with the amount.
There was, however, no indication in the report that the appellant, Jai Bhagwan was guilty or had anything to do with the presentation of the bogus cheque.
Thereafter, on January 31, 1975, the appellant was informed that his services had been terminated with immediate effect.
No reason was mentioned in the order terminating the services of the appellant.
We have no information nor was his learned counsel in a position to tell us as to any immediate steps taken by the appellant to question the order of termination of his services.
But he did ultimately raise an industrial dispute and by an order dated December 15, 1980 the Governor of Haryana referred the following dispute for adjudication to the Industrial Tribunal, Haryana at Faridabad: "Whether the termination of services of Shri Jai Bhagwan was justified and in order ? If not, to what relief is he entitled ?" Even from the brief narration of facts, it is obvious that there was a total breach of the principles of natural justice.
The appellant was never asked to answer any charges, there was no enquiry against him, no notice was issued to him to show cause why his services should not be terminated and even the order terminating his services failed to mention any reason.
The order terminating the services of the appellant was wholly unsustainable.
If, therefore, the bank wanted to sustain the order terminating the services of the appellant, it was up to the bank to lead necessary evidence to prove such charges as it desired to establish against the appellant.
The bank made an effort by adducing the evidence of three witness MW I, the Establishment Officer, MW II, Assistant 162 Manager, Karnal and MW III, the Enquiry Officer, none of whom could either prove that the cheque was a forgery or that it had been presented by the appellant.
Shri Phulel Singh, who would have been the most crucial witness, was not examined.
In the absence of the evidence of Shri Phulel Singh, no case could possibly be said to have been made out against the appellant.
Yet by a very curious process of reasoning, the Industrial Tribunal upheld the order of termination of the appellant 's services.
He dismissed the contention that principles of natural justice had not been observed with the observation that strict rules of evidence were not applicable to domestic enquiries and "not too much legalism was expected in such matters from the enquiry Officer.
" We are unable to understand what the Industrial Tribunal meant.
There was not the slightest semblance of observance of the principles of natural justice.
The enquiry made by the enquiry officer was not directed against the appellant, but was held with a view to find out whether there was any truth in the complaint of the customer that somebody had presented a bogus cheque and drawn Rs. 4200 from his account.
The report of the enquiry officer also contained no finding against the appellant.
At no time was the appellant informed of any charges against him or his explanation sought.
Commenting on the report of the enquiry officer, the Industrial Tribunal stated: "I have gone through the documents produced by the management and found that the enquiry officer took great pain in finding out the facts of the case as was evident from his report exhibit M 8 which was dated 21st August, 1974.
The report gives minute details and is logical.
The enquiry officer reached the conclusion by going through the records of the bank and also of the drawee branch of Punjab & Sind Bank, Dhulkot and ascertaining the person in whose account the sum of Rs. 4200 was deposited and also the connection of Shri Jai Bhagwan concerned workman with that person.
I am convinced by reading the enquiry report that the concerned workman was involved into withdrawal and, therefore, he was found guilty by the Enquiry Officer.
" This shows a total non application of the mind by the Industrial Tribunal since the appellant was never found guilty by the enquiry officer.
The Industrial Tribunal also stated that a final show cause notice had been issued to the workman on September 17, 1974 in 163 which the findings of the enquiry officer were briefly given.
This is another indication that the Industrial Tribunal never applied his mind to the issues before him.
The letter dated September 17, 1974 had nothing whatever to do with the presentation of the cheque or the withdrawal of the money.
It was concerned with the absence of the appellant from duty on August 13 and 14, 1974 and the signatures said to have been found in the attendance register against the dates August 13 and 14, 1974.
Thus, the Industrial Tribunal, apparently without applying his mind to the facts of the case and without bothering even to peruse the records, gave a finding that the termination of the services of the workman were justified and in order.
We are constrained to reject the findings and the conclusion of the Industrial Tribunal as entirely worthless.
The appellant filed a writ petition in the High Court of Punjab & Haryana, but the writ petition was unfortunately summarily rejected.
The workman has filed these two appeals under article 136 of the Constitution, one against the decision of the Industrial Tribunal and the other against the summary dismissal of the writ petition by the High Court.
Both the appeals have to be allowed in the circumstances mentioned by us.
Shri Rohatgi, learned counsel for the Respondent Bank, was unable to contend that there was even a remote compliance with the principles of natural justice.
He was also unable to urge that the Industrial Tribunal had truly applied his mind to the case.
He, however, argued that the appellant had a remedy against the order of termination of services by way of an appeal to the Board of Management and that his failure to pursue that remedy barred him from raising any Industrial dispute.
He also attempted to connect the order of termination of services with the absence of the workman from the bank on August 13 and 14, 1974, on days when his signature was found in the attendance register.
We see no substance in either of the submissions.
Raising an industrial dispute is a well recognised and legitimate mode of redress available to a workman, which has achieved statutory recognition under the Industrial Disputes Act and we fail to see why the statute recognised mode of redress should be denied to a workman because of the existence or availability of another remedy.
Nor are we able to understand how an Industrial Tribunal to whom a dispute has been referred for adjudication can refuse to adjudicate upon it and surrender jurisdiction which it undoubtedly has to some other authority.
While the Government may exercise their discretion in 164 deciding whether to refer or not to refer a dispute for adjudication, the Tribunal to whom the dispute has been referred has no discretion to decide whether to adjudicate or not.
Once a reference has been properly made to an Industrial Tribunal, the dispute has to be duly resolved by the Industrial Tribunal.
Resolution of the dispute cannot be avoided by the Tribunal on the ground that the workman had failed to pursue some other remedy.
The attempt of Shri Rohatgi to connect the order terminating the appellant 's services with his absence from the bank on August 13 and 14, 1974 is an attempt made before us for the first time.
At no earlier stage was the order of termination of services sought to be sustained on the basis of the absence of the workman from the bank on August 13 and 14, 1974.
It cannot be done now.
The appellant is, therefore, entitled to be reinstated in service with continuity of service from the date on which his services were terminated.
Having regard to the circumstance that the workman raised an Industrial dispute after considerable delay without doing anything in the meanwhile to question the termination of his services, we do not think that we will be justified in awarding full back wages.
We think that award of half the back wages from the date of termination of service until to day and full wages from this day until reinstatement will meet the ends of justice.
The appellant will be entitled to his costs which we quantified at Rs. 5,000.
P.B.R. Appeal allowed.

summary/full:
There was a complaint from an account holder of the respondent bank that his account was wrongly debited with a big sum of money even though he had never issued a cheque for that sum.
The appellant, a clerk cum cashier, was apparently suspected to be responsible for the presentation of the cheque.
The bank lodged a complaint with the police but the appellant was eventually, discharged.
In the meanwhile, the bank placed him under suspension.
An enquiry as to the genuineness of the customer 's complaint was ordered.
The appellant was advised to be present at the enquiry but no charge sheet was ever served on him.
In his report, the enquiry officer stated that "there lies the possibility that the complaint of the applicant may be genuine.
" But there was no indication in the report that the appellant had anything to do with the presentation of the cheque.
Yet, on basis of this report the appellant 's services were terminated.
Thereafter the appellant raised an industrial dispute.
The Industrial Tribunal, rejecting the appellant 's contention that principles of natural justice had not been observed upheld the order of termination of his services.
In the workman 's appeal to this Court it was contended on behalf of the respondent that the appellant ought to have pursued the remedy of appealing to the Board of Management against the order of termination and his failure to do so disentitled him from raising any industrial dispute.
Allowing the appeal, HELD: The order terminating the services of the appellant was wholly unsustainable.
The appellant is entitled to be reinstated with continuity of service from the date of termination of his services.
There was total non application of the mind by the Tribunal.
[161 G; 164 D; 162 H] There was a total breach of the principles of natural justice: the appellant was never asked to answer any charge; there was no enquiry against him; no 159 notice was issued to him to show cause why his services should not be terminated and even the order terminating his services failed to mention any reason.
The Bank should have led necessary evidence to prove the charge against the appellant.
None of the three witnesses examined by the Bank could either prove that the cheque was a forgery or that it had been presented by the appellant.
The enquiry was not directed against the appellant but was held with a view to find out whether there was any truth in the customer 's complaint.
The enquiry officer did not say that the appellant was guilty or had anything to do with the presentation of the bogus cheque.
The complainant, who would have been the most crucial witness, was not examined.
[161 F; H; 162 A; C E] Notwithstanding all this, by a curious process of reasoning the Industrial Tribunal upheld the order of termination, dismissing the appellant 's contention that principles of natural justice had not been observed.
The Tribunal 's observation that strict rules of evidence were not applicable to domestic enquiries and that "not too much legalism was expected in such matters from the enquiry officer" was far from correct.
In short, the Tribunal, without applying its mind to the facts of the case and without bothering to peruse the records, gave a findings that the termination of his services was justified.
The Tribunal 's findings and conclusion were therefore worthless.
[162 B C; H; 163 B C] Raising an industrial dispute is a well recognised and legitimate mode of redress available to a workman, which has achieved statutory recognition under the Act and there is no reason why a statute recognised mode of redress should be denied to a workman because of the existence or availability of another remedy.
Nor has an industrial tribunal, to which a dispute had been referred for adjudication, the power to refuse to adjudicate upon it and surrender its jurisdiction to some other authority.
While the Government may exercise its discretion to refer or not to refer a dispute for adjudication, once a dispute is referred to it, the Tribunal has no discretion to decide whether to adjudicate or not.
The Tribunal has to resolve the dispute.
The Tribunal cannot avoid it on the ground that the workman had failed to pursue some other remedy.
[163 G H; 164 A B] The attempt to connect the order terminating the appellant 's services with his absence from the bank on two days was an attempt made for the first time before this Court.
It cannot be allowed to be raised now.
The letter dated 17th September, 1974 addressed to the appellant had nothing to do with the presentation of the cheque or withdrawal of money, but related to his absence from duty on two days in August 1974 and his signature said to have been found in the attendance register on those days.
[164 B C;163 A B] The workman has awarded half back wages from the date of termination of service to the date of judgment and full wages thereafter to the date of reinstatement on the ground that he raised the dispute after a considerable delay without doing anything in the meanwhile.
[164 E]


judgement:
Special Leave Petition No.9148 of 1980.
From the Judgment and Order dated the 3rd September, 1980 of the High Court of Delhi in C.M. (N).
No. 49 of 1974.
Prithvi Raj and Chaman Lal Itorora for the Petitioner.
I.D. Garg and K.B. Rohtagi for the Respondents.
But in view of the growing tendency of litigants of by passing the normal remedy of an appeal or revision by moving the High Court with petitions under article 227 of the Constitution, we deem it necessary to give the reasons therefor.
It appears that the property belonging to the surety Mohd. Salam comprised of a house situate at Katra Sheikh Chand, Lal Kuan, Delhi was sold by the Subordinate Judge, Delhi in execution of an ex parte decree in favour of Mohd. Mustaqim due to the failure of the judgment debtor Hakim Mazhar ud Din to satisfy the decree on May 24, 1972.
On June 9, 1972 the surety made an 213 application under section 151 of the Code of Civil Procedure, 1908 without specifying whether it was under O.XXI,r. 90 The learned Subordinate Judge by his order dated June 10, 1972 treated the application to be under O.XXI, r. 89 and the surety opted to elect it as such and prayed for time to deposit the solatium equal to 5% of the purchase money for payment to the auction purchaser Chuni Lal, but failed to make such deposit the till death on July 22, 1972.
At no stage of the proceedings did the surety assert that the decree had been satisfied out of Court, nor did he make an application under O.XXI, r. 2 for certification of adjustment.
He died leaving behind him a son named Mohd. Karim and a daughter named Mst.
Rabia Khatoon, both of whom were apparently settled in Pakistan, After his death, on August 11, 1972, the petitioner who is a total stranger to the estate of the deceased surety, made an application stating that his name be substituted as he was the grandnephew of the surety and also his heir and successor in interest under an alleged will executed by the surety on July 20, 1972 i.e. two days before his death.
On the same day, there was an application moved by the decree holder stating that the surety had already made payment of the decretal amount and costs to him before the sale was held on May 24, 1972 and that full satisfaction of the decree may be recorded.
The respondent, who is the auction purchaser, contested the claim of the petitioner and pleaded inter alia that the genuineness of the alleged will is open to question apart from its validity as it was affected by the doctrine of marz ul maut and that, in any event, the alleged adjustment could not affect his right or title to the property in dispute as an auction purchaser.
The learned Subordinate Judge by his order dated November 23, 1972 held that there was no question of allowing the substitution of the name of the petitioner by the Court under its inherent powers.
On December 15, 1972 the petitioner moved another application under s.151 of the Code for setting aside the sale on the ground that there was material irregularity in publishing and conducting the same and also to record satisfaction of the decree and set aside the sale.
That application of his was disallowed by the learned Subordinate Judge by his order dated November 9, 1973 on the ground that his earlier order dated November 23, 1972 holding that the application made by the surety purporting to be under O.XXI, r.89 stood disposed of as he did not comply with the requirements of r.89, operated as res judicata, and no question of invocation of the inherent powers of the Court arose and further that the 214 application made by the petitioner treated as an application under O.XXI, r.89 was barred by limitation as it was filed beyond the period of 30 days prescribed by Art.127 of the First Schedule to the .
Dissatisfied with the impugned orders passed by the learned Subordinate Judge, the petitioner moved the High Court under article 227 of the Constitution.
The contention before the High Court was that there was fraud perpetrated by the decree holder in bringing the property in dispute to sale although there was full satisfaction of the decree by the surety before his death.
The High Court instead of dismissing in limine the petition under Art.227 of the Constitution as not maintainable, declined to interfere with the impugned orders of the learned Subordinate Judge because it was satisfied that the application made by the petitioner construed as an application made under O.XXI, r.89 to set aside the sale was barred both by the principle of constructive res judicata and also by limitation inasmuch as it was governed by Art.127 of the First Schedule to the , We fail to see the propriety of the petition moved by the petitioner in the High Court under Art.227 of the Constitution.
The rule is well established that there can be no certification of an adjustment between the decree holder and the judgment debtor under O.XXI, r.2 after an auction sale is held in a case where a third party 's interest intervenes.
In such a case, the Court has no alternative but to confirm the sale under O.XXI, r.92 of the Code.
In Nanhelal & Anr.
vs Umrao Singh, the Judicial Committee of the Privy Council in dealing with o.
XXI, r.2 of the Code held that an adjustment between the decree holder and the judgment debtor come to at any time before the confirmation of an execution sale cannot nullify the decree by taking away the very foundation of the Court 's power to execute the decree viz. the existence of a decree capable of execution.
In dealing with the question, the Privy Council observed: "In the first place, 0.21, R.2, which provides for certification of an adjustment come to out of Court, clearly contemplates a stage in the execution proceedings when the matter lies only between the judgment debtor 215 and the decree holder, and when no other interests have come into being.
When once a sale has been effected, a third party 's interest intervenes, and there is nothing in this rule to suggest that it is to be disregarded.
The only means by which the judgment debtor can get rid of a sale, which has been duly carried out, are these embodied in R.89, viz, by depositing in Court the amount for the recovery of which the property was sold, together with 5 per cent on the purchase money which goes to the purchaser as statutory compensation, and this remedy can only be pursued within 30 days of the sale: see article 166, Sch.1, Lim.
Act, 1908.
" The Privy Council further observed: "That this is so is clear from tho wording of R.92, which provides that in such a case (i.e. where the sale has been duly carried out), if no application is made under R.89, the Court shall make an order confirming the sale and thereupon the sale shall become absolute." The petition under Art.227 of the Constitution was wholly misconceived.
An appeal lay from an order under O.XXI, r. 92 setting aside or refusing to set aside a sale, under O.XLIII, r. 1 (j) to the District Judge.
That apart, the application made by the petitioner claiming to be the legal representative of the surety, the judgment debtor 's representative, on the one hand and the auction purchaser, the decree holder 's representative, on the other alleging that there had been a fraud perpetrated by the decree holder in causing the sale to be held, with a prayer for recording satisfaction of the decree under O,XXI,r.2, raised a question relating to the execution, discharge or satisfaction of the decree and therefore fell within the purview of section 47 which prior to February 1,1977 was appealable because then a decision under section 47 was deemed to be a decree under section 2(2) of the Code, and therefore the petitioner had the remedy of an appeal to the District Judge.
Even if no appeal lay against the impugned orders of the learned subordinate Judge, the petitioner had the remedy of filing a revision before the High Court under s.115 of the Code.
Upon any view of the matter, the High Court had no jurisdiction to interfere with the impugned orders passed by the learned Subordinate Judge, under article 227 of the Constitution.
A mere wrong decision without anything 216 more is not enough to attract the jurisdiction of the High Court under article 227.
The supervisory jurisdiction conferred on the High Courts udder article 227 of the Constitution is limited "to seeing that an inferior Court or Tribunal functions within the limits of its authority", and not to correct an error apparent on the face of the record, much less an error of law.
In this case there was, in our opinion, no error of law much less an error apparent on the face of the record.
There was no failure on the part of the learned Subordinate Judge to exercise jurisdiction nor did he act in disregard of principles of natural justice.
Nor was the procedure adopted by him not in consonance with the procedure established by law.
In exercising the supervisory power under Art.227, the High Court does not act as an Appellate Court or Tribunal.
It will not review or re weigh the evidence upon which the determination of the inferior court or tribunal purports to be based or to correct errors of law in the decision.
The special leave petition is accordingly dismissed.
P.B.R. Petition dismissed.

summary/full:
On the failure of the judgment debtor to satisfy the decree passed against him the property in dispute was sold in execution of the decree.
The surety made an application under section 151 Code of Civil Procedure, without mentioning the order under which the application was made.
The Subordinate Judge treated the application as one under order XXI, r.89.
The surety in that application prayed for time to deposit the amount but failed to make the deposit.
In the meantime, he died.
A total stranger to his estate purporting to be his grand nephew made an application for substitution claiming that he was the surety 's successor in interest and that before his death the surety had executed a will in his favour.
On the same day the decree holder made an application stating that the surety had made payment of the decretal amount before the sale was held and prayed that full satisfaction of the decree be recorded.
The respondent who was the auction purchaser, contested the genuineness of the will and stated that the alleged adjustment could not in any event affect his right or title to the property in dispute as auction purchaser.
The Subordinate Judge refused substitution of the petitioner.
Some time later, the petitioner moved another application under section 151 of the Code of Civil Procedure, for setting aside the sale on the ground of material irregularity in conducting the sale but that application was rejected by the Subordinate Judge.
The petitioner thereupon moved the High Court under article 227 of the Constitution contending that fraud was perpetrated by the decree holder in bringing the property in dispute to sale although there was full satisfaction of the decree by the surety before his death.
The High Court declined to interfere with the impugned orders of the Subordinate Judge on various grounds.
On the question whether it was proper for the petitioner to have moved a petition under article 227 of the Constitution.
Dismissing the petition 212 HELD: The petition under article 227 was wholly misconceived.
The supervisory jurisdiction conferred on the High Courts under article 227 of the Constitution is limited "to seeing that an inferior Court or Tribunal functions within the limits of its authority", and not to correct an error apparent on the face of the record, much less an error of law.
In the instant case, there was no error of law or error apparent on the face of record.
From an order under O.XXI, r.92 an appeal lay to the District Judge.
That apart the petitioner 's application raised a question relating to execution which fell within the purview of section 47 Code of Civil Procedure which prior to February 1, 1977 was appealable because then a decision under section 47 was deemed to be a decree under section 2(2) of the Code.
Therefore, the petitioner had the remedy of appeal to the District Judge: Even if no appeal lay against the impugned orders of the Subordinate Judge, the petitioner had the remedy of filing a revision before the High Court under section 115 of the Code.
Upon any view of the matter the High Court under article 227 of the Constitution had no jurisdiction to interfere with the impugned orders passed by the Subordinate Judge.
A mere wrong decision without anything more is not enough to attract the jurisdiction of the High Court under Article 227.[215 E: 216B C; 215F H;216 A]


judgement:
Civil Appeal No. 2618 of 1983.
From the Judgment and Order dated the 18th January, 1983 of the Patna High Court in Election Petition No. 15 of 1980.
section Rangarajan, D. P. Mukherjee, G. section Chatterjee and R. P. Singh for the Appellant.
section section Ray, M. P. Jha and Ms. Mridula Ray for the Respondents.
121 The Judgment of the Court was delivered by RANGANATH MISRA, J.
This appeal under section 116A of the Representation of the People Act, 1951 ( 'Act ' for short), is directed against the decision of the High Court at Patna setting aside the appellant 's election to the Bihar Legislative Assembly from 115 Jamtara Assembly Constituency polling for which was held on May 31, 1980, and the result of which was declared on June 2,1980.
Sixteen candidates being the appellant and the 15 respondents contested the election.
The appellant was the candidate of the Communist Party of India and respondent No. 1 was of the Congress (I) Party.
At the poll the appellant received 13336 votes while the respondent No. 1 polled 13312 votes.
The appellant was, therefore, declared elected on the footing that he had received 24 more votes than the respondent No. 1.
Respondent no, 2 had polled 13285 votes.
As the election dispute has been confined to the appellant and respondent No. 1 it is not necessary to refer to the other candidates or indicate particulars of their performance at the election.
Respondent No. 1 filed an election petition under section 81 of the Act asking for the appellant 's election to be set aside and for a declaration that he should be declared as the successful candidate.
In paragraph 9 of the election petition he pleaded the details of the illegalities and irregularities committed in the course of counting of ballot papers.
It is not necessary to refer to the other details excepting what was pleaded in paragraph 9(i) as respondent No. 1 did not press the election petition on those grounds.
The pleading in the sub paragraph was to the following effect.
"On table No. 10 booth No. 10 (Fukbandi Primary School) 74 ballot papers of the petitioner were wrongly rejected on the ground that they did not contain the signature of the Presiding Officer.
Similarly 31 ballot papers of the petitioner were rejected on different tables on the ground that they do not contain the signature of the Presiding Officer.
The aforesaid ballot papers were rejected by the Assistant Returning Officer inspite of the objections raised by the petitioner and his counting agents.
" It is appropriate to indicate here that the High Court did not take into account the plea in regard to 31 ballot papers in the absence of particulars.
The appellant in his written statement 122 before the High Court pleaded that the statements contained in paragraph 9 and its sub paragraphs were vague and incorrect.
In paragraph 16 of the written statement it was stated: "During course of counting no illegality or irregularity of any kind was committed; rather the same was held in proper, legal and orderly manner, nor any such imaginary illegality was pointed out or any objection was raised on behalf of the petitioner.
" In paragraph 17 it was further pleaded that "the statement contained in paragraph No. 9(i) of the election petition is wrong.
It is false to say that the ballot papers were rejected only on the ground of want of signature of the Presiding Officer.
The fact is that the Assistant Returning Officer, who was duly appointed, after fully applying his mind and finding nearly 95 ballot papers of booth No. 10 to be spurious and not genuine and after giving cogent, legal and satisfactory reasons, rejected the ballot papers.
The petitioner has suppressed the fact that besides his 74, 31 ballot papers of other contesting candidates including 3 of the respondent No. 1 were also rejected for not bearing signature of the Presiding Officer and the distinguishing mark of the polling station No. 10.
" In paragraph 18 of the written statement the appellant pleaded that: "With reference to the contents of paragraph No. 9(i) of the Election Petition, the respondent no.1 further begs to submit that counting of ballot papers of booth No. 10 was completed before 12 noon in the very first round and the petitioner secured 3160 votes in that round while the respondent No. 1 could get only 484 and one Parmanand Mishra got 1172 votes.
Neither the petitioner nor his election agents nor counting agents, all of whom were present in the counting hall, did raise any objection at the time of rejection of the ballot papers or for the whole day rather they accepted the position that those ballot papers were rightly rejected being spurious and not genuine.
However, after announcement of the votes of last round and conclusion of counting of the votes and completion and submission of result sheet in Form 20 by the Assistant Returning Officer to the Re 123 turning Officer, the petitioner having lost the election by a small margin lost all his senses and like a drowning man catching the last straw, made out a false case of illegality in counting and thus on 2.6.1980 at 1.50 a.m. for the first time raised an objection by filing a petition which was frivolous in nature to count the rejected ballot papers in his favour".
After the evidence of both parties had been recorded, on February 19, 1982, the learned trial Judge made the following order: "Having considered the arguments of learned counsel for the parties and the materials on the record and in view of the decisions referred to above, I am satisfied that the petitioner in his election petition has given adequate statements of material facts on which he relies in support of his case and has made out prima facie case for inspection of the ballot papers which have been cast in his favour and rejected.
Without expressing any opinion regarding the merit of the claim of the parties, I am of the view that in order to decide the dispute and to do justice between the parties inspection of ballot papers is necessary.
I, therefore, direct that all those ballot papers which have been cast in favour of the petitioner and rejected by the Returning Officer at the time of counting, i.e. 74 of Fukbandi Booth No. 10 and 31 of other booths, should be inspected by learned counsel for the parties in presence of a responsible officer of the Court.
" The appellant sought to challenge this order by moving an application under Article 136 of the Constitution before this Court but that was rejected.
On April 14, 1982, the learned trial Judge on a petition of the appellant for clarification of the order dated February 19, 1982, made the following direction: "In my opinion, there is no ambiguity in the order passed by this Court on 19.2.82, yet objection has been raised for which there is no basis.
However, learned counsel for the petitioner has submitted that he would be quite satisfied if only 74 rejected ballot papers from 124 booth No. 10 Fukbandi booth are inspected.
Let inspection of only 74 rejected ballot papers from Booth No. 10 Fukbandi booth be made." The learned trial Judge after inspection of the ballot papers and upon hearing counsel for the parties, came to hold that the rejection of these 74 ballot papers for want of the Presiding Officer 's signature was not justified and gave the election petitioner credit of all those votes.
On that basis he came to hold that the respondent No. 1 had received the majority of the valid votes polled at the election (the excess being 50) and while setting aside the election of the appellant, declared the respondent No. 1 to have been duly elected.
This decision is assailed in appeal.
Mr. Rangarajan in support of the appeal has taken the stand that: (i) the particulars furnished in paragraph 9 of the election petition were inadequate and fall short of the requirements of the law; (ii) inspection of the ballot papers should not have been granted and even on inspection, the 74 ballot papers were not available to be counted in favour of respondent No. 1; (iii) if inspection was to be granted and credit was to be given of rejected ballot papers, all the 954 ballot papers should have been scrutinised and the examination for recount should not have been confined to 74 only; and (iv) the view taken by the learned trial Judge of the High Court that in the absence of a prayer for recrimination under section 97 of the Act, the appellant was precluded from asking for a recount of the other rejected ballot papers is not tenable in law.
Before entering into an examination of the tenability of these contentions, it would be proper to take note of the decision in the case of Jagan Nath vs Jaswant Singh & Ors., of a five Judge Bench of this Court.
Mahajan, C.J. spoke for the Court thus: "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.
" 125 What was said in Jagan Nath 's case continues to be the law binding this Court and in the recent case of Jyoti Basu & Ors.
vs Debi Ghosal & Ors, this Court reiterated the position by saying: "A right to elect, fundamental though it is to democracy, is, anomalously enough, neither a fundamental right nor a Common Law Right.
It is pure and simple, a statutory right.
So is the right to be elected.
So is the right to dispute an election.
Outside of statute, there is no right to elect, no right to be elected and no right to dispute an election.
Statutory creations they are, and therefore, subject to statutory limitation.
An election petition is not an action at Common Law, nor in equity.
It is a statutory proceeding to which neither the common law nor the principles of equity apply but only those rules which the statute makes and applies.
It is a special jurisdiction, and a special jurisdiction has always to be exercised in accordance with the statute creating it.
Concepts familiar to Common Law and Equity must remain strangers to Election Law unless statutorily embodied.
A Court has no right to resort to them on considerations of alleged policy because policy in such matters, as those, relating to the trial of election disputes, is what the statute lays down.
In the trial of election disputes, Court is put in a straight jacket.
Thus the entire election process commencing from the issuance of the notification calling upon a constituency to elect a member or members right up to the final resolution of the dispute, if any, concerning the election is regulated by the Representation of the People Act, 1951, different stages of the process being dealt with by different provisions of the Act.
There can be no election to Parliament or the State Legislature except as provided by the Representation of the People Act, 1951, and again, no such election may be questioned except in the manner provided by the Representation of the People Act.
So the Representation of the People Act has been held to be a complete and self contained code within which must be found any right claimed in relation to an election or an election dispute.
" 126 We are bound by the decision of the larger Bench and we are in agreement with what has been said in Jyoti Basu 's case.
The first question to consider is, whether the pleading in paragraph 9(i) of the election petition was adequate in view of the provisions of the Act.
Section 94 of the Act provides for secrecy of voting.
Detailed provisions have been made in the Conduct of Election Rules, 1961, to give effect to this wholesome provision contained in section 94.
An election petition is presented in terms of section 81 of the Act.
Section 83 prescribes as to what the petition should contain.
Sub section (1) (a) of section 83 states that an election petition shall contain a concise statement of the material facts on which the petitioner relies.
Since there is no allegation of any corrupt practice in this case there is no necessity to refer to clause (b) of sub section
(1) of section 83.
Though initially Mr. Rangarajan had contended that the verification was not in accordance with law, he has abandoned this contention during the hearing in view of the statutory form of verification prescribed and the verification in the instant case conforms to it.
According to Mr. Rangarajan the pleading in paragraph 9(i) does not amount to a concise statement of the material facts.
Appellant 's learned counsel has placed reliance on the observation in Samant N. Balakrishna etc.
vs George Fernandez & Ors.
, where, with reference to section 83 of the Act it has been said that the petition must contain a concise statement of the material facts on which the petitioner relies and the fullest possible particulars should be given.
Material facts and material particulars may overlap.
Balakrishna 's case where Hidayatullah, C.J. made these observations was one where allegations of corrupt practice had been made and the case came under section 83(1) (b) of the Act.
Obviously, allegations of corrupt practice being in the nature of a criminal charge, the Act requires full particulars to be given.
The scheme in section 83(1) of the Act makes the position very clear.
Clause (a) refers to general allegations and requires a concise statement of material facts to be furnished while clause (b) referring to corrupt practice requires all details to be given.
Appellant 's counsel, therefore, was not entitled to rely upon the proposition in Balakrishna 's case for the present purpose.
So far as averment in paragraph 9(1) of the election petition is concerned, we find that the number of ballot papers alleged to have been wrongly rejected has been furnished, the counting table number has been given, the booth 127 number has also been disclosed and the ground for rejection has even been pleaded.
Respondent No. 1 pleaded that the particulars of the ballot papers could not be obtained as during counting they were not shown.
His counting agent at table No. 10 has been examined as his witness No. 3.
He has stated: "The ballot box of Fukbandi booth No. 10 was brought on my table and it was intact.
That ballot box contained some ballot papers which were not bearing signature of the Presiding Officer.
I raised objection in respect of those ballot papers that they should not be treated as doubtful ballot papers to be sent to the Returning Officer.
Counting Supervisor did not listen to my protest and sent them to the Returning Officer as doubtful ballot papers.
There were 74 such ballot papers.
" The Assistant Returning Officer was examined as RW.
4 on behalf of the appellant.
In his evidence he stated that he had rejected some ballot papers of booth No. 10.
He again stated that "counting agents of candidates were not allowed to note down the serial numbers of the ballot papers.
In view of the statement of the counting agent of respondent no.1 and the evidence of the Assistant Returning Officer there can be no scope to doubt, and in our view the High Court was right in taking the view, that the particulars of the rejected ballot papers were not available to the counting agents and, therefore, particulars of the numbers of the ballot papers had not been given in the election petition.
We agree with the High Court that in the facts and circumstances of the case the pleading in paragraph 9(1) set out the material facts in a proper way and no defect can be found with it.
Mr. Rangarajan next canvassed that the High Court went wrong in allowing inspection of the ballot papers.
Reliance was placed on the decision of this Court in the case of Bhabhi vs Sheo Govind & Ors.
, where it has been held that the following conditions were imperative before the Court could grant inspection or sample inspection of ballot papers: (1) That it is important to maintain the secrecy of the ballot which is sacrosanct and should not be allowed 128 to be violated on frivolous, vague and indefinite allegations; (2) That before inspection is allowed, the allegations made against the elected candidate must be clear and specific and must be supported by adequate statement of material facts; (3) The Court must be prima facie satisfied on the materials produced before the Court regarding the truth of the allegations made for a recount.
(4) That the discretion conferred on the Court should not be exercised in such a way so as to enable the applicant to indulge in a roving inquiry with a view to fish materials for declaring the election to be void; and (5) That on the special facts of a given case sample inspection may be ordered to lend further assurance to the prima facie satisfaction of the Court regarding the truth of the allegations made for a recount, and not for the purpose of fishing out materials.
" We have already pointed out that the allegations made in paragraph 9(i) of the election petition were clear and definite.
On the facts of the case the plea was confined to one aspect, viz., for want of the Presiding Officer 's signature with reference to 74 ballot papers cast at a particular booth and counted on a particular table the same had been rejected.
The only specific detail which was wanting was the serial number of the 74 ballot papers.
We have, on the evidence recorded in the case, come to the conclusion that this particular was not available to the election petitioner in spite of attempts made on his behalf.
While we agree with the view expressed in Bhabi 's case, on the facts before us we are inclined to think that inspection had rightly been ordered.
Mr. Ray for respondent no.1 pressed before us the fact that the order of the High Court allowing inspection had been questioned before the Court and no interference was made.
Appellant 's counsel on the other hand contended that as the application under Article 136 of the Constitution had not been disposed of on merits, this aspect was open to 129 challenge in regular appeal under section 116A of the Act.
It is unnecessary to refer further to the consequences of non interference by this Court on the earlier occasion as on the facts we are satisfied that the action of the High Court in allowing inspection is not open to dispute.
A number of authorities were cited by Mr. Rangarajan in support of his contention that inspection should not have been granted.
Since Bhabhi 's case has considered most of the cases relied upon by Mr. Rangarajan and tests have been laid down to which reference has been made by us, we see no necessity to independently refer to and deal with the other cases.
The 74 ballot papers which had been rejected were placed before us during the hearing.
In the election petition it has been contended that the rejection was only on one ground, viz., absence of the signature of the Presiding Officer.
The appellant in his written statement had taken the stand that the identifying mark was also wanting.
The ballot papers have been scrutinised by us as also by learned counsel for both the parties.
Mr. Rangarajan has conceded on seeing the ballot papers that each of them bears the mark.
Admittedly none of them contains the signature of the Presiding officer.
Rule 56 of the Conduct of Election Rules; 1961, makes detailed provision for counting of votes.
Sub rule (2) requires the Returning Officer to reject a ballot paper when any of the seven infirmities indicated therein is found.
In view of the contentions advanced before us the relevant infirmities would be as provided in sub clause (e), i.e. the ballot paper is a spurious one and (h), i.e. it does not bear both the mark and the signature which it should have borne under the provisions of sub rule (1) of rule 38.
Rule 38(1) provides: "Every ballot paper before it is issued to an elector, and the counterfoil attached thereto shall be stamped on the back with such distinguishing mark as the Election Commission may direct, and every ballot paper, before it is issued, shall be signed in full on its back by the Presiding Officer.
" There 74 ballot papers cast in favour of the respondent No. 1 which have been rejected were in two series, 24 in one and 50 in the other.
Though the Assistant Returning Officer had stated that according to him these were spurious, he has in his cross examination clarified the position that by spurious ' he meant that the ballot 130 papers did not contain the signature of the Presiding Officer.
That these ballot papers were used at the election in booth No. 10 is not open to doubt in view of the ballot paper account for this booth.
That shows that 810 ballot papers in all had been received being from serial nos. 006851 to 007660.
424 ballot papers were used and ballot papers of the same number had been found in the ballot box and duly accounted for.
The numbers of the ballot papers including the 74 in dispute are covered by the particulars of used ballot papers given in the ballot paper account which is Ext.
2 in the case.
The Presiding Officer himself has proved this document.
The report made by the Returning Officer to the Election Commission Ext.
A also shows that the ballot papers were not spurious.
There is sufficient evidence on record from which it can be concluded that the rejection of these 74 ballot papers was on account of the fact that they did not contain the signature of the Presiding Officer as required under rule 38(1).
Mr. Rangarajan is right in his submission that if a ballot paper does not contain the signature of the Presiding Officer it has got to be rejected at the counting in view of the mandatory provision in rule 56(2) of the Conduct of Election Rules.
The point for consideration now is whether the proviso which reads as follows was applicable: "Provided that where the returning officer is satisfied that any such defect as is mentioned in clause (g) or clause (h) has been caused by any mistake or failure on the part of a presiding officer or polling officer, the ballot paper shall not be rejected merely on the ground of such defect".
On the submissions at the Bar, the question of mistake does not arise.
It has to be found out whether these 74 ballot papers in dispute did not contain the signature of the Presiding Officer on account of his failure.
Rule 38 makes it clear that the distinguishing mark and the signature of the Presiding Officer have to be put on the ballot paper before the same is issued to the voter at the booth.
The distinguishing mark can be put by any one but the signature has got to be of the Presiding Officer and obviously he has to personally do that job.
There is evidence that the Presiding Officer had been taken ill on the date of poll.
He has been examined as PW2.
From his evidence it appears that this was his first experience as a Presiding officer of a booth.
He has stated: "On the day of poll my bowls was upset and I had visited the pokhra (tank) once on the day of 131 poll and during that period all the ballot papers were kept on the table.
I had not put my signature on all the ballot papers.
I had deputed one of the polling officers at the booth to watch the ballot papers when I had gone to the pokhra.
For 5 to 10 minutes that I was absent from the polling booth on the day of poll, I cannot say what had happened during that period.
" The appellant had cross examined this witness and suggested to him that he had gone to attend to the call of nature three or four times.
The appellant 's witness No. 2 who was also a candidate at the election (and is a respondent here) has stated: "I found the Presiding Officer at booth No. 10 sleeping under a Neem tree at some distance from the booth when I visited the booth in the noon.
" Once it is held that the 74 ballot papers were not spurious, and had been issued to the voters at the booth in the course of the poll, it would be reasonable to presume that the ballot papers had been issued to the voters without signatures of the Presiding Officer though the distinguishing mark had been put.
The absence of the Presiding Officer from the place of poll has clearly been established.
Whether it was for 5 to 10 minutes as deposed by him or it was no three or four occasions as suggested to him in cross examination or for a good length of time during which he was having a nap under a neem tree as deposed to by RW. 2, it is clear that he was away from the place of polling for quite some time.
The polling process must have continued and voters who came during his absence had obviously been issued these unsigned ballot papers.
If the facts be these, would it not be a case of failure of the Presiding Officer to put his signatures on the ballot papers is the question for consideration.
It was the obligation of the Presiding Officer to put his signature on the ballot papers before they were issued to the voters.
Every voter has the right to vote and in the democratic set up prevailing in the country no person entitled to share the franchise can be denied the privilege.
Nor can the candidate be made to suffer.
Keeping this position in view, we are of the definite view that the present case is one of failure on the part of the Presiding Officer to put his signature on those ballot papers so as to satisfy the requirement of law.
The proviso, once it is applicable, has also a mandate that the ballot paper is not to be rejected.
We, therefore, hold that the ballot papers were not liable to be rejected as the proviso applied and the High Court, in our opinion, came to the 132 correct conclusion in counting these ballot papers and giving credit thereof to the respondent No. 1.
The next question for consideration is as to whether all the ballot papers which were rejected in the constituency should have been allowed to be inspected and recounted on the basis of inspection or should the inspection have been confined to 74 ballot papers as done.
This question is connected with the fourth contention of the appellant 's counsel, i.e. whether in the absence of a recrimination the appellant who was the returned candidate, could claim that the election petitioner would not succeed for the additional relief as he had not received the majority of the votes polled at the election.
We have already indicated that the appellant as the elected candidate in his written statement had pleaded that the counting was in accordance with law and not objectionable.
The effect of such a plea is that the ballot papers which had been cast in his favour but credit had not been given thereof had been validly rejected.
In the election petition two reliefs had been claimed, firstly, for setting aside the election of the returned candidate, i.e. the appellant, and secondly, for a declaration that the election petitioner (respondent No. 1) was the duly elected candidate.
The relief claimed was in terms of section 100(1) (d) (iii) and section 101 (a) of the Act.
The election petitioner had claimed that there was improper rejection of votes cast in his favour and that he had received a majority of the valid votes at the election.
The Act makes in section 97 provision for recrimination.
Sub section(1) of that section which is material reads thus: "When in an election petition a declaration that any candidate other than the returned candidate has been duly elected is claimed, the returned candidate or any other party may give evidence to prove that the election of such candidate would have been void if he had been the returned candidate and a petition had been presented calling in question his election: Provided that the returned candidate or such other party, as aforesaid shall not be entitled to give such evidence unless he has, within fourteen days from the date of commencement of the trial given notice to the High Court of his intention to do so and has also given the security and the further security referred to in sections 117 and 118 respectively.
" 133 Admittedly no application for recrimination was filed.
Mr. Rangarajan has strenuously contended that keeping the scheme and the purpose of the law in view, in a case of this type refusal to count the other rejected ballot papers on the plea of non filing of a recrimination petition would lead to injustice.
We have already indicated the pronounced view of this Court in Jagan Nath 's case which has been followed throughout and the last in series is the case of Jyoti Basu to which also we have adverted.
There is no scope for equity since the entire gamut of the process of election is covered by statute.
Reliefs as are available according to law can only be granted.
It is true that in Kum.
Shradha Devi vs Krishna Chandra Pant & Ors.
, it has been observed: "If the allegation is of improper rejection of valid votes which is covered by the broad spectrum of scrutiny and recount because of miscount, petitioner must furnish prima facie proof of such error.
If proof is furnished of some errors in respect of some ballot papers, scrutiny and recount cannot be limited to those ballot papers only.
If the recount is limited to those ballot papers in respect of which there is a specific allegation of error and the correlation is established, the approach would work havoc in a parliamentary constituency where more often we find 10,000 or more votes being rejected as invalid.
Law does not require that while giving proof of prima facie error in counting each head of error must be tested by only sample examination of some of the ballot papers which answer the error and then take into consideration only those ballot papers and not others.
This is not the area of enquiry in a petition for relief of recount on the ground of miscount.
" These observations came not in a case to which section 97 of the Act applied.
This Court was considering a case of recount simpliciter.
The position of law as to the imperative necessity of a recrimination in cases as before us is well settled.
A Five Judge Bench in Jabar Singh vs Genda Lal, examined at length the provisions of section 100 and section 97 of the Act.
That was a case where the difference was of two votes and as application had been made asking for reliefs both 134 under section 100(1) (d) (iii) as also section 101.
In that background the question for consideration was whether in the absence of a petition for recrimination relief could be granted.
Gajendragadkar, J. (as the learned Judge then was), spoke for himself and three other learned Judges.
In the majority judgment it was held: "Confining ourselves to clause (iii) of section 100(1) (d), what the Tribunal has to consider is whether there has been an improper reception of votes in favour of the returned candidate.
It may also enquire whether there has been a refusal or rejection of any vote in regard to any other candidate for whether there has been a reception of any vote which is void and this can only be the reception of a void vote in favour of the returned candidate.
In other words, the scope of the enquiry in a case falling under section 100(1) (d) (iii) is to determine whether any votes have been improperly cast in favour of the returned candidate or any votes have been improperly refused or rejected in regard to any other candidate.
These are the only two matters which would be relevant in deciding whether the election of the returned candidate has been materially affected or not.
At this enquiry, the onus is on the petitioner to show that by reason of the infirmities specified in section 100(1) (d) (iii), the result of the returned candidate 's election has been materially affected, and that, incidentally, helps to determine the scope of the enquiry.
Therefore, it seems to us that in the case of a petition where the only claim made is that the election of the returned candidate is void, the scope of the enquiry is clearly limited by the requirement of section 100(1) (d) itself.
The enquiry is limited not because the returned candidate has not recriminated under section 97(1); in fact section 97(1) has no application to the case falling under section 100(1) (d) (iii), the scope of the enquiry is limited for the simple reason that what the clause requires to be considered is whether the election of the returned candidate has been materially affected and nothing else.
If the result of the enquiry is in favour of the petitioner who challenges the election of the returned candidate, the Tribunal has to make a declaration to that effect, and that declaration brings to an end the proceedings in the election petition.
135 There are, however, cases in which the election petition makes a double claim; it claims that the election of the returned candidate is void, and also asks for a declaration that the petitioner himself or some other person has been duly elected.
It is in regard to such a composite case that section 100 as well as section 101 would apply, and it is in respect of the additional claim for a declaration that some other candidate has been duly elected section 97 comes into play.
Section 97(1) thus allows the returned candidate to recriminate and raise pleas in support of his case that the other person in whose favour a declaration is claimed by the petition cannot be said to be validly elected, and these would be pleas of attack and it would be open to the returned candidate to take these pleas, because when he recriminates, he really becomes a counter petitioner challenging the validity of the election of the alternative candidate.
The result of section 97(1) therefore, is that in dealing with a composite election petition, the Tribunal enquires into not only the case made out by the petitioner, but also the counter claim made by the returned candidate.
That being the nature of the proceedings contemplated by section 97(1), it is not surprising that the returned candidate is required to make his recrimination and serve notice in that behalf in the manner and within the time specified by s.97(1) proviso and section 97(2).
If the returned candidate does not recriminate as required by section 97, then he cannot make any attack against the alternative claim made by the petition.
In such a case, an enquiry would be held under section 100 so far as the validity of the returned candidate 's election is concerned, and if as a result of the said enquiry a declaration is made that the election of the returned candidate is void, then the Tribunal will proceed to deal with alternative claim, but in doing so, the returned candidate will not be allowed to lead any evidence because he is precluded from raising any pleas against the validity of the claim of the alternative candidate.
It is true that section 101(a) requires the Tribunal to find that the petitioner or such other candidate for the declaration of whose election a prayer is made in the election petition has in fact received a majority of the valid 136 votes.
It is urged by Mr. Kapoor that the Tribunal cannot make a finding that the alternative candidate has in fact received a majority of the valid votes unless all the votes cast at the election are scrutinised and counted.
In our opinion, this contention is not well founded.
We have already noticed that as a result of rule 57 (now rule 56(6) of Conduct of Election Rules), the Election Tribunal will have to assume that every ballot paper which had not been rejected under r. 56 constituted one valid vote and it is on that basis that the finding will have to be made under section 101(a).
Section 97(1) undoubtedly gives an opportunity to the returned candidate to dispute the validity of any of the votes cast in favour of the alternative candidate or to plead for the validity of any vote cast in his favour which has been rejected; but if by his failure to make recrimination within time as required by section 97 the returned candidate is precluded from raising any such plea at the hearing of the election petition, there would be nothing wrong if the Tribunal proceeds to deal with the dispute under section 101(a) on the basis that the other votes counted by the returning officer were valid votes and that votes in favour of the returned, candidate, if any, which were rejected, were invalid.
What we have said about the presumed validity of the votes in dealing with a petition under section 101(a) is equally true in dealing with the matter under section 100(1)(d)(iii).
We are, therefore, satisfied that even in cases to which section 97 applies, the enquiry necessary while dealing with the dispute under section 101(a) will not be wider if the returned candidate has failed to recriminate.
" Ayanagar, J. did take a different view of the matter and it is on the minority view that strong reliance has been placed by Mr. Rangarajan.
He has even contended that the proposition in minority view was more appealing and had reminded us that there have been instances where the minority view lays down the law correctly and in due course is accepted to be the law of the country.
As we shall presently show, the ratio in the majority opinion is still holding the field and on the plea that the minority view may some day become the law, relief in the present case cannot be granted.
We are bound by the decision of the larger Bench.
137 This Court in P. Malaichami vs Mr. Andi Ambalam and Ors., considered this question again.
Alagiriswami, J. spoke for the Bench which heard the appeal.
There it had been contended by counsel that in view of the facts of that case, recrimination and the requirement of section 97 need not have been insisted upon.
This is how that contention was answered: "The question still remains whether the requirements of section 97 have to be satisfied in this case.
It is argued by Mr. Venugopal that the gravamen of the respondent 's petition was breach of many of the election rules and that he asked for a total recount, a request to which the appellant had no objection and that there was, therefore, no rule or need for filing a recrimination petition under section 97.
This, we are afraid, is a complete misreading of the petition.
No doubt the petitioner asked for a recount of votes.
It may legitimately be presumed to mean a recount of all the votes, but such a recount is asked for the purpose of obtaining a declaration that the appellant 's election was void and a further declaration that the respondent himself had been elected.
This aspect of the matter should not be lost sight of.
Now, when the respondent asked for a recount, it was not a mere mechanical process that he was asking for.
The very grounds which he urged in support of his petition (to which we have referred at an earlier stage) as well as the application for recount and the various grounds on which the learned Judge felt that a recount should be ordered showed that many mistakes where likely to have arisen in the counting, and as revealed by the instances which the learned Judge himself looked into and decided. ." The ratio of the decision in Jabar Singh 's case was followed and it was stated: "What we have pointed out just now shows that it is not a question of mere pleading, it is a question of jurisdiction.
The Election Tribunal had no jurisdiction to go into the question whether any wrong votes had been counted in favour of the election petitioner, who 138 had claimed the seat for himself unless the successful candidate had filed a petition under section 97.
The law reports are full of cases where parties have failed because of their failure strictly to conform to the letter of the law in regard to the procedure laid down under the Act and the Rules.
" Several decisions were cited before us by Mr. Ray for respondent No. 1 which we think unnecessary to refer to in view of the clear pronouncements and the state of the law as indicated by these decisions.
In the absence of a recrimination petition conforming to the requirements of section 97 of the Act the appellant who happens to be an Advocate and is presumed to know the law, was not entitled to combat the claim of the election petitioner on the ground that if the remaining rejected ballot papers had been counted, the election petitioner would not have been found to have polled the majority of the valid votes.
For the reasons we have indicated, this appeal has to be dismissed.
In the circumstances we direct the parties to bear their respective costs throughout.
H.S.K. Appeal dismissed.

summary/full:
The first respondent who lost to the appellant by 24 votes in the Assembly Elections filed an election petition in the High Court under section 81 of the Representation of the People Act, 1951 asking for the appellant 's election to be set aside and for declaration that he should be declared as the successful candidate.
In para 9(i) of the petition the respondent pleaded that 74 ballot papers cast in his favour were wrongly rejected on the ground that they did not contain the signature of the Presiding Officer.
The High Court ordered inspection of these ballot papers.
The High Court held that the rejection of these 74 ballot papers for want of the Presiding Officer 's signature was not justified and gave the respondent No. 1 credit of all those votes and on that basis while setting aside the election of the appellant, declared the first respondent to have been duly elected.
Hence this appeal.
The appellant urged that the pleading in para 9(i) of the Election petition did not amount to a concise statement of the material facts as required by law; the High Court went wrong in allowing inspection of the ballot papers; the 74 ballot papers in dispute did not contain the signature of the presiding officer and were rightly rejected at the counting in view of the mandatory provision in rule 56(2) of the Conduct of Elections Rules, 1961 and the High Court 's view that in the absence of a prayer for recrimination under section 97 of the Act, the appellant was precluded from asking for a recount of the other rejected ballot papers is not tenable in law.
Dismissing the appeal, HELD: An election petition is presented in terms of section 81 of the Act.
Section 83 prescribed as to what the petition should contain.
Clause (a) of sub section
(1) of section 83 states that an election petition shall contain a concise statement of the material facts on which the petitioner relies.
In the instant 119 case the number of ballot papers alleged to have been wrongly rejected has been furnished, the counting table number has been given, the booth number has also been disclosed and the ground for rejection has even been pleaded.
The only specific detail which was wanting was the serial number of the ballot papers.
This particular was not available to the election petitioner in spite of attempts made on his behalf.
The Court, therefore, agrees with the High Court that in the facts and circumstances of the case the pleading in paragraph 9(i) set out the material facts in a proper way and no defect can be found with it.
The High Court had rightly ordered the inspection of the ballot papers.
[126 B C; H; 127 A; 128 F G; 127 F] Samant N. Balakrishan etc., vs George Fernandez and Ors, etc.; , explained and distinguished, Bhabhi vs Sheo Govind and Ors., [1975] Suppl.
S.C.R. 202, referred to.
Rule 38(1) of the Conduct of Election Rules, 1961 provides inter alia that every ballot paper before it is issued to an elector shall be stamped on the back with a distinguishing mark and shall be signed in full on its back by the presiding officer.
The distinguishing mark can be put by anyone but the signature has got to be of the presiding officer and obviously he has to personally do that job.
Rule 56(2)(h) provides that the returning officer shall reject a ballot paper if it does not bear both the distinguishing mark and the signature as mentioned in sub rule (1) of rule 38.
There is a proviso to sub rule (2) of rule 56 which says that where the returning officer is satisfied that any such defect as is mentioned in clause (h) has been caused by any mistake or failure on the part of a presiding officer or polling officer, the ballot paper shall not be rejected merely on the ground of such defect.
The proviso, once it is applicable is a mandate that the ballot paper is not to be rejected.
[129 F G; 130 G; 129 E F; 130 E; 131 H] In the instant case the 74 ballot papers in dispute were rejected because they did not contain the signature of the presiding officer as required under rule 38(1).
To see whether the proviso to sub rule (2) of rule 56 was applicable, it has to be found out whether the absence of the signature of the presiding officer on these ballot papers was on account of mistake or of his failure.
On the submissions at the bar, the question of mistake does not arise.
It was the obligation of the presiding officer to put his signature on the ballot papers before they were issued to the voters.
Every voter has the right to vote and in the democratic set up prevailing in the country no person entitled to share the franchise can be denied the privilege.
Nor can the candidate be made to suffer.
Keeping this position in view the Court is of the definite view that the present case is one of the failure on the part of the presiding officer, who had been taken ill on the date of poll and was away from the place of polling for quite some time, to put his signature on those ballot papers so as to satisfy the requirement of law.
The ballot papers therefore were not liable to be rejected as the proviso applied and the High Court came to the correct conclusion in counting these ballot papers and giving credit thereof to the respondent No. 1.
[130 C; F G; 131 F H; 130 H; 131 E; H; 132 A] 120 In a case in which the election petition claims that the election of the returned candidate is void, and also asks for a declaration that the petitioner himself or some other person has been duly elected, section 100 as well as section 101 of the Act would apply, and it is in respect of the additional claim for such declaration that section 97 comes into play.
Section 97(1) thus allows the returned candidate to recriminate and raise pleas in support of his case that the other person in whose favour a declaration is claimed by the petition cannot be said to be validity elected, and these would be pleas of attack and it would be open to the returned candidate to take these pleas, because when he recriminates, he really becomes a counter petitioner challenging the validity of the election of the alternative candidate.
The result of section 97(1) therefore is that in dealing with a composite election petition, the Tribunal enquires into not only the case made out by the petitioner, but also the counter claim made by the returned candidate.
That being the nature of the proceedings contemplated by section 97(1), it is not surprising that the returned candidate is required to make his recrimination and serve notice in that behalf in the manner and within the time specified by section 97(1) proviso and section 97(2).
If the returned candidate does not recriminate as required by section 97, then he cannot make any attack against the alternative claim made by the petition.
[135 A F] Kum.
Shradha Devi vs Krishna Chandra Pant & Ors.
, ; ; Jabar Singh vs Genda Lal, ; and P. Malaichami vs M. Andi Ambalam & Ors. ; referred to.
In the instant election petition two reliefs had been claimed, firstly, for setting aside the election of the returned candidate, i.e. the appellant, and secondly, for a declaration that the election petitioner (respondent No. 1) was the duly elected candidate.
The relief claimed was in terms of section 100(1)(d) (iii) and section 101(a) of the Act.
Admittedly no application for recrimination was filed by the appellant.
In the absence of a recrimination petition conforming to the requirement of section 97 of the Act the appellant who happens to be an advocate and is presumed to know the law, was not entitled to combat the claim of the election petitioner on the ground that if the remaining rejected ballot papers had been counted the election petitioner would not have been found to have polled the majority of the valid votes.
[132 D E; 133 A; 138 C D]