BIBHUTI BHUSAN BANERJEE Vs. DWARIKANATH BHATTACHARJEE

JUDGEMENT

(1.) The petitioner and the accused c were rival candidates for election as com-missioner of ward 8 of the Bhatpara Municipality. The nomination paper of the accused was rejected by the chairman on the ground that there was no seconder. It was held that the name of the seconder, Jung Bahadur, was forged. Against this decision, there was an appeal to the District Magistrate who is the appellate authority under rules framed under the Bengal Municipal Act. The appeal was dismissed. The petitioner then filed a complaint before the Subdivisional Officer, Barrackpore, charging the accused with having committed an offence punishable under Section 471, Indian Penal Code. The accused was summoned but discharged on the ground that the complaint was barred by limitation as Section 34(b), Bengal Municipal Act, prescribed a period of limitation for the prosecution of an offence of this nature and that period was seven days from the date of the commission of the offence. Against this decision, the complainant moved the learned Sessions Judge. He held that Section 34, Bengal Municipal Act, would not apply to a prosecution for an offence punishable under Section 471, Indian Penal Code, but that the prosecution must fail as Section 195(1)(c), Criminal P.C., barred the Court from taking cognizance of this offence, inasmuch as there was no complaint by the chairman or Magistrate. He was of opinion that, even if the chairman was not a Court, the District Magistrate who heard the appeal was certainly a Court, and that the offence being, one committed in proceedings before that Court, Section 195(1)(c) required a complaint being made by the Court.

(2.) The complainant has obtained this rule and his contention is this : The act done by the accused constitutes an offence under Section 471, Indian Penal Code, and also an offence under Section 33, Bengal Municipal Act. By virtue of the provisions of Section 26, General Clauses Act, the accused is liable to be prosecuted either under the Indian Penal Code or under the Bengal. Municipal Act. This prosecution is under the Indian Penal Code. The Returning Officer and the District Magistrate are not Courts but officers discharging merely administrative functions, Section 195 (1)(C), Criminal P.C., therefore has no application. Mr. Basu for the opposite party contends that if the offence be treated as one punishable under Section 33, Bengal Municipal Act, then the prosecution would be barred under Section 34 of the same Act. The Indian Penal Code could not be called in aid to avoid the bar of limitation. If, however, the act be treated as an offence under the Indian Penal Code, Section 195(1)(c), Criminal P.C., would be a bar, as the chairman and the District Magistrate hearing the appeal were Courts and there was no complaint by either of them.

(3.) There can be no doubt that the act alleged amounts to an offence punishable under Section 471, Indian Penal Code; the first point for determination is whether it is also made punishable under the Bengal Municipal Act. Learned advocates for both sides argued that it constituted an offence punishable under Section 33, Bengal Municipal Act, and I was inclined at first to agree with this view. On further consideration, however, I am of opinion that Section 33, Bengal Municipal Act, does not contemplate the offence alleged to have been committed by the accused. Let us examine the relevant sections of Bengal Municipal Act. Six offences are made punishable under six different sections, viz., Section 28 to 33. The sections deal with different stages. The offence dealt with by each section is described in the heading to each section thus: - Section 28: Offences in respect of the electoral list; Section 29: Corrupt practices; Section 30: fraudulent voting and personation; Section 31: Infringement of secrecy of election; Section 32 : Offences by polling officers; Section 33 : Falsifying result of election. The scheme is clear. Suction 28 deals with offences committed before the election commences when the electoral list is being prepared. Secs.29 to 33 deal with offences committed in the course of the election or after the election has been held but before the result of the election has been published. Section 33 has, in my opinion, nothing to do with the submission of a forged nomination paper before the election commences. The section deals with an act committed in the course of electoral operations and not with an act committed before the electoral operations commence. Offences committed at the stage prior to the election are dealt with by Section 28. Section 33 deals with the falsification or attempted falsification of the record of an election by removing, destroying, altering or fabricating nomination papers or voting papers or by any other act or omission. The gravamen of the offence is stated in the heading : "Falsifying result of election". The falsification of a nomination paper, per se is not an offence under the Bengal Municipal Act. The offence is the falsification or attempted falsification of the record of an election. Now, at the time that the nomination paper was handed in, in this case, there was no record of an election in existence and it cannot be said that there was either a falsification or attempted falsification of such a record. I hold therefore that the act complained of does not constitute an offence punishable under the Bengal Municipal Act; it constitutes offence punish, able under the Indian Penal Code only. The trial must therefore be held according to the provisions of the Criminal P. C. and nothing contained in Section 34 of Bengal Municipal Act, can apply to such a trial.