NUNE PANAKALU Vs. RAO SAHEB RAVULA SUBBA RAO

JUDGEMENT

(1.) The petitioner in these cases, a defeated candidate at an election in the Chirala Municipality, filed a complaint before the Joint Magistrate of Ongole against the 1 accused the successful candidate, the 2nd accused the Municipal Chairman, and the 3 accused the Polling Officer, under Secs.52(2), 54(a), 54(b), 56 and 57 of the District Municipalities Act. Generally stated, the charge against them was that they all conspired together and procured improper entries in the voters list, threatened voters with prosecutions for alleged encroachments, etc., detained some of them under wrongful restraint and infringed rules for preserving secrecy of the election--these things having been done for the purpose of supporting the candidature of the 1 accused. The Joint Magistrate took the complaint on file against the 1 and the 3 accused and passed an order that Section of the Government appeared to be necessary for the prosecution of the 2nd accused. The complainant thereupon filed a fresh petition before the Joint Magistrate requesting him "to include the 2nd accused, issue summons to him and take fresh evidence."The Joint Magistrate issued summons, and, after hearing the pleaders on both sides regarding the necessity for Government Section, passed an order under Section 203 of the Criminal P. C., dismissing the case against the 2nd accused. In doing so he held that no case was made out against the 2nd accused under Secs.56 and 57 of the District Municipalities Act as he was not a Municipal Officer and that, as regards the offences under Secs.52 and 54, Section of the Local Government was necessary before proceeding against him. The District Magistrate was called upon to revise this order (Cr.R.P. No. 42 of 1926) and he then held that the Joint Magistrate's order under Section 203, Criminal Procedure Code, must be construed as an order of acquittal. He also held that, even if it did not amount to an order of acquittal, the proceedings could not go on against the 2nd accused without the Section of the Local Government and that he was not prepared to move the Government to appeal against the acquittal on his own motion "as the complaint was too nebulous to warrant a presumption that a good case could ever be made out."He therefore dismissed the petition.

(2.) Criminal Revision Cases Nos. 281 and 283 have been filed by the complainant against the above orders of the District Magistrate and the Joint Magistrate respectively. After disposing of the case against the 2nd accused, the Joint Magistrate took up the case against the 1 and the 3 accused and, as he was of opinion that the complainant absented himself to prevent the Court from proceeding with the trial of the case on an adjourned date, he acquitted the two accused under Section 247 of the Criminal Procedure Code. This order is sought to be revised in Criminal Revision Case No. 282 of 1927. Cr. Rev. Cases Nos. 281 and 283 of 1927.- -I will first deal with Criminal Revision Cases Nos. 281 and 283 of 1927 in which the 2nd accused is the counter-petitioner. Mr. Ramadoss for the 2nd accused has not argued that the order of the Joint Magistrate amounts to an order of acquittal. Though the Joint Magistrate issued summons to the 2nd accused there was no order either under Section 202 or under Section 204 of the Criminal Procedure Code. The records show that no evidence was recorded on either side. The District Magistrate's opinion that evidence must have been tendered is a pure conjecture. In these circumstances, I do not think that the order of the Joint Magistrate dismissing the complaint amounts to an order of acquittal. It is, as it distinctly purports to be, an order under Section 2,03 of the Criminal Procedure Code dismissing the complaint and nothing more.

(3.) The real question for consideration is whether Section of the Local Government is required for prosecuting the 2nd accused for any of the offences mentioned in the complaint. As Secs.56 and 57 of the District Municipalities Act relate to offences by polling officers, clerks or other persons in attendance at the polling room, clearly the 2nd accused cannot be prosecuted for those offences as he is the Municipal Chairman and admittedly not a polling officer, clerk or other person in attendance at the polling room and so no question of Section arises with reference to these Sections. The same is the case with regard to the complaint under Section 52(2) brought against him. Under that section Every Municipal Officer or servant or polling officer who willfully makes or procures any improper entry in the electoral roll or any improper omission there from shall be punished....