NUR AHMAD Vs. JOGESH CHANDRA SEN

JUDGEMENT

(1.) This is a rule obtained at the instance of five persons of whom petitioner 1 Moulavi Nur Ahmad is the Chairman of the Chittagong Municipality; petitioner 2 Babu Mohendra Chandra Das is a Commissioner of the Chittagong Municipality; petitioner 3 Moulavi Mohammad Nasir is also a Commissioner of that Municipality; petitioner 4 Moulavi Hefazatur Rahman is a Tax Daroga of that Municipality and petitioner 5 Munshi Ashraf Ali is a clerk of that Municipality. It appears that under the provisions of Section 21, Bengal Act 15 of 1932 as amended by Act 9 of 1933, the petitioners 1 to 3 were appointed as a Committee for the purpose of preparing and publishing an electoral roll of persons qualified to vote. An electoral roll was prepared by the petitioners 1 to 3, assisted, it is alleged, by the petitioners 4 and 5, and was published as the final electoral roll on 14 February 1934. On 20 February 1934 a petition of complaint which bore the date 14 February 1934 was presented by Babu Jogesh Chandra Sen, a Muktear, and a Municipal voter, in the Court of a Magistrate, Mr. B. K. Mukherjee. The petition contained allegations against a number of persons including the petitioners and prayed for summonses against them. The allegations which it is necessary to consider for the purposes of this rule may conveniently be referred to here. In para. 5 of the petition of complaint it was alleged that the accused persons, acting in concert, had by improper, dishonest and fraudulent means, procured the entry in the finally published electoral roll, of the names of persons who were not legally eligible to vote, and had wilfully and improperly omitted from the electoral roll the names of certain other persons. In para. 6 of the petition it was alleged, that this petitioners before us had fraudulently and dishonestly altered the electoral roll, after its final publication, by inserting certain names therein without lawful authority.

(2.) The Magistrate Mr. B. K. Mukherjee directed another Magistrate Moulavi Salamatulla Choudhury to hold an inquiry into the matter and to make a report. On 27 April 1934 the Magistrate after perusing the report submitted by Maulavi Salamatulla Choudhury and after hearing the parties, recorded an order to the effect that he was of opinion that a prima facie case of offences Under Section 28, Bengal Municipal Act and Sub-section 193 and 465, I. P. C, had been disclosed, and ordered summonses to issue accordingly. It is against that order that this rule is directed, and we are invited by Mr. N. K. Basu appearing for the petitioners 1 to 3, and by Mr. Fazlul Haq, appearing for petitioners 4 and 5, to quash the proceedings for reasons which may be briefly enumerated. Firstly, on behalf of all the petitioners, it was argued that Section 28, Sub-section 1, Bengal Municipal Act, has no application to the facts alleged. Secondly, on behalf of the petitioners 1 to 3 it was argued that they are not Municipal Officers, servants or polling officers and are therefore not hit by Section 28, Sub-section 2 of the Act. In support of the first and second arguments reliance was placed upon the case of Hem Chandra Das V/s. Subodh Chandra Das Gupta, 1934 Cal 498, and the case of Satya Charan Mukherjee V/s. Krishna Mohan Banerjee, Cri Revn. Nos. 418 and 457 of 1934 decided by Guha and Bartley, JJ., on 8 June 1934.

(3.) Thirdly, it was argued also on behalf of the petitioners 1 to 3, that they were public servants not removable from their offices save by or with the sanction of the Local Government, that the acts alleged against them if committed at all purported to have been done in the discharge of their official duty, and that, therefore by reason of Section 197, Criminal P. C, no prosecution for a criminal offence was maintainable against them without the previous sanction of the, Local Government, which had not in this case been obtained. Fourthly, it was argued on behalf of all the petitioners, that the allegations made against them did not disclose offences under Section 193, or Section 465, I. P. C. Lastly?and this argument was advanced on behalf of petitioners 4 and 5 only, that they must have acted in what they did, under orders of the petitioners 1 to 3, and in concert with them?that if the proceedings against the latter deserved to be quashed, the proceedings against the petitioners 4 and 5 could not be separately treated. This question would depend upon the facts which the prosecution are able to prove, and it might as well be stated here that we are not in a position to decide the question whether charges can be framed against these petitioners or not. It would be convenient to deal with the contentions above mentioned seriatim.