Brijbehari vs Emperor

Dhavle, J.—This is an application in revision, against the conviction of the petitioner u/s 167; Penal Code.

A general election of the Dinapur Nizamat Municipality was fixed for 10th January 1938, and the Chairman of the municipality, acting under Rule 18(l), Bihar Municipal Election Rules, 1937, appointed) the head clerk of the municipality�a post held by the petitioner�with the tax collectors of the municipality as his assistants, to prepare the electoral rolls of all persons entitled to be registered as voters in each of the five wards into which the municipality was divided at that time.

In September 1987, Government intimated that they were contemplating the division of the municipality into single-seated wards and asked that the election proceedings be postponed. In October came a Government Notification dividing the municipality into 16 wards instead of the former five plural-seated wards. The general election in accordance with this new division was fixed for 11th May 1938. Under Rule 13(3) the electoral roll were to be signed and delivered to the chairman not less than 120 days before the ''date fixed for the general election; and on 11th January 1938, electoral rolls were so handed over to the chairman, including Exs. 20 and 20/1, the rolls for wards 4 and 5, which were admittedly written by the petitioner.

The prosecution case was that in each of these rolls there were incorrect entries made by the petitioner

intending thereby and knowing it to be likely that you may thereby cause injury to the persons affected, particularly the Congress candidates seeking election as Commissioners,

and that he thereby committed an offence punishable u/s 167, Penal Code. There was another charge under Sections 167, Penal Code, but we are not concerned with it now though it is curious that the Magistrate thought that there was a separate charge under each of these two sections. To the-charge u/s 167, from which I have been quoting, were appended by way of particulars five items in connexion with Ward No. 4 (Ex. 20) and five in connexion with Ward No. 5 (Ex. 20/1). The Magistrate found that out of these ten entries specifically charged as incorrect, three were proved to be incorrect to the knowledge of the petitioner two relating to his brother who is shown in Ward No. 4 as Paras Nath and in ward No. 5 as Dr. Paras Nath Gargaya, and one; to his brother-in-law, Sheonarayan Lal in Ward No. 5. The learned Magistrate was not prepared to infer that the accused intended by such entries to harm the Congress party, but he held that "his acts did result in injuries to persons"� he named two such "whose right of voting or chance of election was affected." The learned Sessions Judge also held that these entries had been definitely proved to be incorrect; but according to him "the obvious intention" was "injuring the chance of election of the candidates set up by the rival party." The charge spoke both of the intent and of the knowledge of the petitioner: either of these elements would be sufficient for a conviction, and while the Magistrate apparently found the knowledge, the Sessions Judge round the intent, though towards the end of his judgment he speaks of the petitioner intending to cause or knowing it to be likely that he might cause injury by the incorrect entries. The Magistrate imposed a fine of Rs. 500 for the offence, but the Sessions Judge reduced the sentence to Rs. 100 on the ground that the petitioner was evidently a tool in the hands of the then chairman of the municipality, who was apparently anxious to consolidate his own party and strengthen the chances of election of the members of his party.

It has been contended on behalf of the petitioner and the contention was advanced in the lower Courts as well that Section 167 has no application to him because be was not a public servant as required by the section, nor was he, even if taken to be a public servant, "charged as such with the preparation of the electoral rolls" within the meaning of the section. The case for the prosecution was that he was a public, servant within Clause 11 of Section 21, Penal Code, read with Expl. 2. The former includes within the definition of public servant "every person who holds any office in virtue of which he is empowered to prepare an...electoral roll.... "The head clerk of the municipality had no authority; merely as head clerk, to prepare the electoral rolls, but the chairman of the municipality had appointed him to do so in exercise of the power given by Rule 13(l), Municipal Election Rules. This was, however, before Government divided the municipality into the sixteen wards for which the general election was to be held on llth May 1988. There was no fresh appointment of the petitioner by the chairman under Rule 13(1) after the Government Notification of October 1937, and it has therefore been urged that the petitioner was not a public servant nor charged as such with the preparation of the rolls, that were delivered to the chairman on llth January 1988.

There is, however, no dispute that these electoral rolls included two rolls Exs. 20 and 20/1, written by the petitioner himself. It is also clear that the petitioner wrote these rolls (even though he was not. expressly appointed by the chairman after the notification of October to do so) for the reason that his earlier appointment under the rule was taken to extend to the deferred election, and taken not by the petitioner alone, but by the chairman as well. As the petitioner himself said in a statement made in October 1988 to Pandey R. Sahay, one of the Magistrates who inquired into the matter, the appointment made by the chairman in June or July (to prepare electoral rolls) was never revoked. Explanation 2 to Section 21, Penal Code, provides that wherever the words ''public servant'' occur, they shall be understood of every person who is in actual possession of the situation of a public servant, whatever legal defect there may be in his right to hold that situation. The learned advocate for the petitioner has contended that though this explanation may be available in cases where appointments suffer from informality, it cannot have any application to a case where there was a total absence of authority. The explanation, however, speaks of "whatever legal defect there may be," and Rule 13(1) of the Municipal Election Rules does not require the chairman to make the appointment in writing.

In the present case there was an express appointment of the petitioner made in writing by the chairman in June or July, at a time when the municipality was only divided into five wards. After the division of the municipality into sixteen wards it became necessary to prepare the electoral rolls of persons entitled to be registered as voters in each of these new wards, but the chairman made no new appointment for this work. The petitioner, however, acted as if he had been appointed to do this work and electoral rolls, two of which were entirely written by him, were accepted by the chairman when delivered to him on llth January by a locum tenens during the absence of the petitioner on short leave. Rule 13(1) of the Election Rules does not seem to be intended to deal with the manner of appointment at all, and only lays down which authority is to appoint a person to prepare the rolls.

The learned Sessions Judge took the rule to require an express appointment, but I find it difficult to read this into the rule, and the learned Judge himself saw much force in the prosecution contention that

the very moment the appellant undertook the preparation of the electoral rolls, either under a verbal order of the Chairman or purporting to act under the powers given to him by the earlier order of appointment, he became a public servant within the meaning of Clause 11 of Section 21 read with Espl. 2.

The learned advocate for the petitioner has contended that there is no evidence that the petitioner was appointed by any verbal order of the chairman. That may be, but there is nothing to prevent such an order being fairly inferred from the facts that the petitioner had been expressly appointed in June or July and appointed because he was the head clerk, that he continued to be head clerk after the new division of the municipality and prepared the rolls, and that the chairman who had never revoked the appointment of June or July accepted them. The absence of a formal appointment is immaterial; the petitioner was indubitably "in actual possession of the situation of a public servant" within the clause and the explanation. In my opinion therefore he was rightly1 held to be a public servant in the circumstances. Section 167 furthers requires that he should be shown, as such'' public servant, to have been charged with the preparation of any document, etc. It has been urged that the prosecution fails in this respect'' for want of an express order appointing the petitioner to prepare the rolls in question.

But the word "charged" in the section is not to be very narrowly construed: Queen-Empress v. Deodhar Singh (1900) 27 Cal. 144, a case in which it was held that a Sub-Inspector of Police was charged with the preparation of a report within the meaning of Section 218, Penal Code, (a section which closely resembles Section 167 and will be again referred to) when it appeared that he submitted such a report in pursuance only of a practice requiring such a report. The word "charged" does not therefore provide any additional defence to the petitioner. It is true, as I have already, said, that it was no part of his ordinary duty as head clerk to prepare any electoral roll: without more he could not even be a public servant within Clause 11 of Section 21. The; work of preparing electoral rolls could only fall to him on appointment by the chairman; under Rule 13(1). For the new elections his; appointment was implied in continuation of the former express appointment, and it was, taken by the petitioner no less than by the chairman to be an appointment to prepare new rolls, which not only made as public servant of him but also charged him as such with the preparation of the rolls. The petitioner''s double contention that he was not a public servant and was not as such public, servant charged with the preparation of the , electoral rolls must therefore be overruled.

It has been further contended on behalf of the petitioner that he cannot be said to have "framed" the electoral rolls within the meaning of Section 167. The contention is based on the fact that from 8th January 1938, to after llth January 1938, when the rolls were delivered to the chairman, the petitioner was away on leave, and that though the rolls (Exs. 20 and 20/l) had been written by the petitioner, it was his locum tenens, one Shiva Prasad Varma, who was not examined in the case, that signed the, rolls and delivered them to the chairman. The learned advocate has pointed out that Section 167 speaks of the framing of the document by the public servant charged with its preparation. He has also referred to Rule 13(3) of the Election Rules which requires the persons appointed to prepare the electoral roll to sign and deliver it to the Chairman. On the very face of the Sub-rule, however, read with Sub-rule (l), it is clear that the preparation of the electoral roll is distinct from signing it and delivering it. As to Section 167, it is difficult to see any sensible difference between the preparation and the framing of an electoral roll.

According to the dictionaries ''to prepare'' is to make ready or make by a regular process, and ''to frame,'' to construct by combination of parts or adaptation to design; and no case has been suggested before me in which a person who prepares a document in the ordinary meaning of the former word could yet be said not to have framed it (provided the preparation is complete and final), or vice versa. The learned advocate points out that the electoral rolls prepared under Sub-rule (1) of Rule 13 can only be further operated on after they are signed and delivered to the Chairman. But even so, the signature and the delivery are operations subsequent to the preparation under Sub-rule (l); they would serve to indicate that the preparation was complete, but cannot be said to be essential to the framing required by Section 167, for it is not always impossible to show in other ways that the process of preparing was complete.

In Megraj v. Empress (81) 13 P.R. 1881 Cr, it was contended that an offence u/s 218, Penal Code, (a section which deals with the offence of a public servant framing an incorrect record, expressed in the same terms as the offence u/s 167 of framing an incorrect document, though with a different intent) could not be deemed to have been committed as the documents had never been submitted to the proper authorities. The contention was overruled and it was held that it was not necessary to constitute a complete offence under the section that the incorrect document should be submitted to another person, or be otherwise used by the writer:

The requirements of the section ate satisfied if it is shown that the document has been prepared by a public servant charged with its preparation in a manner which he knows to be incorrect and with the knowledge that he is thereby likely to cause loss to the public;

and further,

if after such preparation he submits the document, with intent thereby to procure credit for or payment of more than to his own knowledge is due to him, all the elements of an attempt to cheat in its simple or aggravated form (Section 117 or Section 418, Penal Code) would be present.

I am, therefore, unable to accept the contention that because the electoral rolls were signed and delivered by Sheo Prasad Yarma, therefore, the petitioner cannot be said to have prepared or framed them. It was argued below that the petitioner''s responsibility for the rolls ceased when he went on leave on 8th January. The learned Sessions Judge declined to accept this contention because "the making of the rolls-was entirely in the petitioner''s charge," his locum tenens merely signing and delivering, them. It has been argued for the petitioner that this overlooks the consideration that the petitioner might, if he had not been, away, have changed his mind in respect of the incorrect entries and corrected them before the time came to deliver, them to the Chairman, or in other words, that the petitioner had not completed his preparation of the rolls.

The learned Sessions Judge has observed that no explanation has been offered for either of the two incorrect entries he was then considering the entries relating to Paras Nath and that the petitioner could not raise the plea of bona fide mistake because Paras Nath was after all his own brother. But it is to be noticed that no explanation was called for on this point from, the petitioner by the trying Magistrate who, as I have already said, was not prepared to infer that the petitioner intended to harm the Congress party as stated in one part of the charge. There is also no suggestion that the petitioner went on leave merely to shift his responsibility on to his locum tenens; it seems clear on the contrary that he did so because of the illness of a daughter who died in the following month. The learned Magistrate took the view that the petitioner did not really expect his locum tenens, "the officiating fellow," as he put it, to correct his mistake, but left the rolls in the state of completeness which is connected by the word ''framed.'' He added that the fact that the petitioner did not sign them "could only be attributed either to gross carelessness in view of the peremptory provisions of Rule 13(3) or to a deep game to have others hauled up for his mistakes."

The former hypothesis, however, is rather inconsistent with the Magistrate''s view that the petitioner did not expect his locum tenens to correct his mistakes, and the latter, with his finding that the petitioner was not convincingly shon to have intended to harm the Contgress party. The learned advocate for the petitioner has laid stress on this observation of the Magistrate as suggesting that he was not really convinced that the petitioner bad left the rolls in a state of completeness. We cannot, in the circumstances of this case, exclude as too remote the possibility that if the petitioner had remained on duty, he might have corrected the incorrect en-tries before signing and delivering the rolls. The petitioner was not asked to explain; why he had made the incorrect entries, and we can therefore only conjecture what was happening. As the Sessions Judge has said the petitioner was only a tool in the hands of the then chairman of the municipality, and the latter was apparently anxious to consolidate his own party and strengthen the chances of election of the members of his party. This influence may not inconceivably have waned in the party politics of the time before the date for delivering the roll to the chairman, opposed as he was to the party of the ministry then in power.

The learned advocate for the petitioner has pointed out that under the Election rules the rolls handed over to the chair-man were to be published as draft rolls only, being finally settled by a revising committee which was not to be appointed by the chairman and which was to hear claims and Rejections invited by public notice. The value of the draft rolls must therefore not be exaggerated. And this makes it even less improbable that the mistakes as the Magistrate apparently regarded them might have been corrected before 11th January, if the petitioner had not been compelled to go on leave for urgent, private reasons.

It is at any rate, difficult on the record of this case to hold that when the petitioner went on leave on 8th January, he had done to the electoral rolls all that he intended to do, and could have done before the time came to deliver them to the chairman. I am not unaware that Section 106, Evidence Act, places upon the petitioner the burden of proving facts especially within his knowledge.

But as was pointed out in U Damapala v. Emperor AIR 1937 Rang. 83 this section cannot be used to support a conviction unless the offence is convincingly brought home to the accused person. There is further the failure of the Magistrate to question the petitioner on the point. For Section 167 to apply, the preparing and framing must be complete and final so far as the author is concerned, and it is difficult to exclude anything that it would have been permissible ; for the petitioner to do to the rolls until the time came for his signing them and delivering them. It has also not been found that the petitioner handed the papers over to his locum tenens as completed rolls.

I consider it extremely doubtful in the circumstances, whether the petitioner could be properly held to have framed the electoral rolls in the sense of final preparation.

I must accordingly allow this application and set aside: the conviction and sentence passed upon the petitioner. Should the fine imposed upon the petitioner have been paid, it must be refunded to him on application.