RAM NATH Vs. KING-EMPEROR

JUDGEMENT

(1.) This is a revision from a conviction of the applicant under Section 171-F of the Indian Penal Code. The applicant was candidate at a Municipal election held at Muttra in March 1923. A person named Hari Shanker, was a voter on the electoral roll but he was not living at Muttra. Some person, who has not been traced by the police, came forward at the time of the election and professed to be Hari Shanker and put his thumb mark on the voting slip. The voting slip was attested by the applicant Ram Nath, the candidate himself. After Ram Nath was elected his election was contested before the Commissioner who set aside the election and directed the prosecution of Ram Nath under Secs.419 and 465, read with Section 109 of the I.P. C, that is to say cheating and abetment of forgery. Ram Nath was convicted by a First Class Magistrate and sentenced to two years rigorous, imprisonment, On appeal the Sessions Judge acquitted him of the offence under Section 419, but maintained his conviction under S, 465 read with Section 109. Ram Nath came up in revision to this Court and Mukerji, J., set aside his conviction under Section 465 read with Section 109 also. His judgment is reported in Ram Nath V/s. Emperor . Mukerji, J., came to the conclusion that the Legislature had specifically provided for such an offence under Section 171-P of the I.P.C. and that even if the offence could fall under Section 465-109 of the I.P.C. it was not open to the criminal Court to try the offender under either of the two sections. In his opinion where there are two provisions, one specific and the other general, the specific provision ought to be applied in preference to the general one. He accordingly held that the conviction of the applicant under Section 465 read with Section 109 could not stand. He then proceeded to examine the evidence and came to the conclusion that inasmuch as Ram Nath was not aware that Hari Shankar was personated he had no guilty knowledge and could not be said to have abetted the forgery. At p. 1111 of 22 A.L.J. the learned Judge quoted from the statements of the polling officer and his assistant, passages showing that the candidate without knowing the illiterate voters, used to ascertain from his men about the voters and then put his signatures on the voting slips. He accordingly held that even on the facts no charge of abetment of the offence under Section 405 had been established.

(2.) It seems to me that it would have been more proper if no further prosecution of the accused had been started. No doubt Mukerji, J., held that for want of a proper sanction the conviction could not stand inasmuch as no sanction of the Local Government for prosecution under Section 171-F had been obtained. Nevertheless he also went into the facts and expressed the view that when Ram Nath was not aware of the false personation no offence had been committed.

(3.) The Local Government subsequently granted sanction to prosecute Ram Nath under Section 171-F of having intentionally abetted the false personation at the election. The trying Magistrate has convicted him and that conviction has been upheld by the Sessions Judge.