SATYA DEV BUSHEHARI Vs. GHANSHIAM

JUDGEMENT

(1.) THIS is an application in revision against the order of the Magistrate first class Kasumpti, dated 11 3 1953, taking cognizance of a complaint filed against the petitioner by the respondent. The offences alleged against the petitioner are forgery under Section 465 and using as genuine a forged document under Section 471, I. P. C., in respect of a nomination paper filed by him be fore the Returning Officer on 12 10 1951 under Section 33 of the Representation of the People Act, 1951. There was a quadrangular fight to fill a seat in the Himachal Pradesh Legislative Assembly from the Rajgarh constituency, the present petitioner Satya Dev Bushahari and respondent Ghanshiam being two of the contestants. The nomination paper delivered by the petitioner to the Returning Officer on 12 10 1951 mentioned one Sudarshan Das as the proposer. On 17 10 1951, the date fixed for the scrutiny of nominations, it was objected that the signature of Sudarshan Das on the nomination paper had been forged. The Returning Officer rejected the objection and accepted the nomination paper. The polling took place on 19 and 20 11 1951, & on the 30th of that month the Returning Officer declared the respondent Ghanshiam as the successful candidate. On 29 1 1952 the petitioner filed an election petition for a declaration that the election of the respondent Ghanshiam was void and that he, the petitioner himself, had been duly elected. The respondent filed a recriminatory petition before the Election Tribunal on 30 5 1952 under Section 97 of the Act contending that if the petitioner had been the returned candidate his election would have been void because he had committed the aforesaid forgery. Besides other issues, the Election Tribunal also framed an issue on this allegation of the respondent in his recriminatory petition. At the time of the arguments the counsel for the petitioner withdrew his prayer that he himself be declared as having been duly elected. The Tribunal therefore held that the recriminatory petition became redundant and consequently the issues framed on the basis of that petition were not argued on behalf of the parties. Eventually the election petition was dismissed on 6 2 1953. The judgment of the Election Tribunal is published on pages 393 to 407 of Part II Section 3 of the Gazette of India Extraordinary dated 14 2 1953. The following day, i.e., on 7 2 1953, the respondent filed the aforesaid complaint in the said Court against the petitioner.

(2.) A preliminary objection was taken before the Magistrate on behalf of the accused, the present petitioner, that as the alleged forged document had been produced before the Returning Officer and subsequently before the Election Tribunal, both of which were Courts under the purview of Section 195, Cr. P. C., the Magistrate was not entitled to take cognizance of the offences otherwise than on a complaint in writing of either of the said Courts. The learned Magistrate repelled the contention & took cognizance of the complaint on the findings that the Returning Officer was not a Court and that, although the Election Tribunal was a Court, it could not be said that the alleged forgery had been committed with the intention of using the forged document as evidence before that Tribunal. This last finding is on the face of it erroneous and was not supported by the learned counsel for the respondent. Allf that Section 195(1) (c) requires is that the offence in question should be alleged to have been committed by a party to any proceeding in any Court in respect of a document produced, or given in evidence in such proceeding, but not that the offence should have been com mitted by the party with the intention of its being produced in the said proceeding.

(3.) THERE could be no doubt however that the Election Tribunal is a Court. Its members are not appointed as persona designata, but the Tribunal is appointed by the Election Commission for the trial of election petitions under Section 86 of the said Act. Judicial duties are thus entrusted to the Tribunal by operation of law and not by voluntary submission of the parties. The dispute upon which it adjudicates is a dispute of a civil nature concerning, as it does, the right of a party to be elected to a certain Legislature. The Tribunal also does not act merely as an advisory body, as was the case under the Indian Elections Offences and Inquiries Act (39 of 1920), but gives a definitive decision which is final under Section 105 of the present Act. Not only is it expected_ to conduct its proceedings with fairness and impartiality, but it must come to its decision according to the law laid down in the said Act. Finally, the rules of procedure which the Tribunal must follow are not arbitrary but as nearly as may be in accordance with the procedure applicable under the Code of Civil Procedure 1908, to the trial of suits, as provided by Section 90 of the Act. Under this last mentioned section and Section 92 the Tribunal has power to summon and examine witnesses on oath and the provisions of the Indian Evidence Act, 1872, apply in all respects to the trial of an election petition. An Election Tribunal therefore possesses all the necessary attributes of a Court, for as laid down in 'Pitman's Shorthand Academy v. B Lila Ram & Sons', AIR 1950 EP 181 (FB) (C):