Nune Panakalu vs Rao Saheb Ravula Subba Rao and Others

Madhavan Nair, J.—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 1st accused the successful candidate, the 2nd accused the Municipal Chairman, and the 3rd accused the

Polling Officer, under Sections 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 1st accused. The Joint Magistrate took the complaint on file against the 1st and the 3rd 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

u/s 203 of the Code of Criminal Procedure, dismissing the case against the 2nd accused. In doing so he held that no case was made out against the

2nd accused under Sections 56 and 57 of the District Municipalities Act as he was not a Municipal Officer and that, as regards the offences under

Sections 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 u/s 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.

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 1st and the 3rd

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 u/s 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 u/s 202 or u/s 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 u/s 2,03 of the Criminal Procedure Code dismissing the complaint

and nothing more.

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 Sections 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 u/s 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....

It is argued that a Municipal Chairman is not a Municipal Officer and so he cannot be proceeded against for an offence under this section. In

support of this argument reliance is placed on the wording of Sections 18(3), 70, 73, 75, 76, 352 and 355(1) of the District Municipalities Act and

also on the decision in A. Palaniyappa Chettiar Vs. K.N. Krishnaswami Chettiar and Others, . In the Act a distinction is made between a

Municipal Chairman and a Municipal Officer, though with respect to some of the Sections it has been argued that the ""Chairman ""has to be

referred to as such in describing his individual powers and duties, and the powers, in certain circumstances, which he possesses over Municipal

Officers. To illustrate what I have said, Section 18 says that the executive powers of the Chairman may be delegated to any Councillor, Municipal

Officer or servant, etc. Section 70(1) says that the Chairman shall from time to time lay before the Council a schedule setting forth the designations

and grades of the officers and servants. Section 75 says that, subject to certain provisions, the Chairman may fine, reduce, suspend, remove or

dismiss any Municipal Officer or servant. Section 76 says that the Chairman may grant leave to all Municipal Officers and servants. Though the use

of the term ""Chairman"" as an individual different from a Municipal Officer in these Sections may perhaps be thus explained, it seems to me that the

Chairman of the Municipality is not classed along with the Municipal Officers, but is treated, for the purposes of the Act, as different from a

Municipal Officer. This appears to be clear from Sections 352 and 355(1). Section 352 says that ""no suit shall be maintainable against any

Municipal Chairman, officer or servant, or any person acting under the direction of any Municipal Chairman, officer or servant, or of a Magistrate,

etc."" Section 355(1) states that it shall be the duty of every police* officer to assist the Chairman or any Municipal Officer or servant reasonably

demanding his aid for the lawful exercise of any power vesting in the Chairman or in such Municipal Officer or servant under this Act, etc. The

explanation that was plausibly attempted for distinguishing the Municipal Chairman from a Municipal Officer in the Sections I have referred to does

not evidently apply to these Sections which show that the Municipal Chairman is put in a different class as distinguished from a Municipal Officer or

servant of the Municipality. In A. Palaniyappa Chettiar Vs. K.N. Krishnaswami Chettiar and Others, . to which one of us was a party, it was held

that the Vice-Chairman is not an officer of the Municipality within the meaning of Section 49 incompetent to stand for an election. I see no reason

why we should not follow this decision and hold that the Chairman is not an Officer of the Municipality within the meaning of Section 52 also. So

far as possible, the terms appearing in the different Sections of the Act should be interpreted in the same way. The main argument urged in support

of the contention that the Municipal Chairman is a Municipal Officer within the meaning of Section 52 is based upon the fact that it is the duty of the

Chairman u/s 44(1) of the Act to prepare and publish an electoral roll showing the names of the persons qualified to vote. If that is so, it is argued

that the Act should not have contemplated to exclude from the scope of Section 52(2) dealing with improper entries in electoral rolls or improper

omissions therefrom, the Municipal Chairman whose duty it is to prepare and publish the electoral roll. I cannot accept this argument. In view of

the rules for the preparation of electoral rolls in Municipalities published under the Act, in cases where objections are taken against the preliminary

roll the Municipal Chairman must be considered as sharing the responsibility for the accuracy of its contents with the ""revising authority""; and

further Rule 8(g) says that

None of the officers entrusted with the preparation of the rolls shall be held legally liable for their completeness or accuracy; neither shall they be

held liable to any action for damages by reason only of any omission or inaccuracy in respect of such rolls or any non-compliance with the dates

prescribed in these rules.

It would thus appear that the reason suggested for bringing Municipal Chairman within the scope of Section 52(2) has not much force. As A.

Palaniyappa Chettiar Vs. K.N. Krishnaswami Chettiar and Others, . have held, on an examination of the relevant Sections of the District

Municipalities Act, that a distinction is made in the Act between a Municipal Chairman and a Municipal Officer, the 2nd accused cannot be

prosecuted u/s 52(2) of the Act.

The next question is whether u/s 197(1) of the Code of Criminal Procedure the previous Section of the Local Government is required before

instituting a complaint against the Chairman of a Municipality u/s 54(a) and (b) of the District Municipalities Act. In this case the 2nd accused is

alleged to have threatened some voters that he would increase their property tax and others that he would institute prosecutions against them for

alleged encroachment if they did not vote for his candidate. He is said also to have wrongfully restrained some people from voting. I am clearly of

opinion that no section is required before proceeding against the Municipal Chairman with respect to these alleged offences. No doubt, the

Chairman of a Municipality is a public servant and not removable except by the Local Government (see In re Chairman of the Municipal Council,

Ellore (1894) 1 Weir 243 and King-Emperor v. U Maung Gale ILR (1926) Rang. 128. But the acts alleged against him cannot be said to have

been committed by him while acting in the discharge of his official duty. It is conceded that the alleged act of wrongful restraint cannot be said to

have been committed by the Chairman in his capacity of public servant as such. In my opinion, the allegations made against him u/s 54(b) also fall

within the same description. In Kamisetty Raja Rao Vs. T. Ramaswami, it was held that no previous section of the Local Government was

necessary for instituting a complaint against the Chairman of a Municipality for threatening a voter with injury to his property with intent to induce

such voter to vote for any candidate or to abstain from voting. I therefore hold that section u/s 197(1), Criminal Procedure Code, is not necessary

in respect of the complaint against the 2nd accused u/s 54(a) and (b) of the District Municipalities Act.

Mr. Ramadoss then argues that, as the complaint alleges that all the accused conspired together to commit the aforesaid offences, section u/s

196-A of the Criminal Procedure Code is required for proceeding against the 2nd accused and also against the other accused. I cannot accept this

argument, for the complaint does not disclose a charge of criminal conspiracy punishable u/s 120(b) of the Indian Penal Code against the accused.

It is not alleged in the complaint that any of the accused committed that offence; nor do the allegations in it make out that such an offence has been

committed. The words ""conspire"" and ""conspiracy"" are vaguely used in the complaint only to show that all the accused are jointly responsible for

the commission of the offence. Section u/s 196-A, Criminal Procedure Code, is therefore not necessary for proceeding against any of the accused

in this case.

The last argument advanced on behalf of the 2nd accused is that, since the offences alleged against him u/s 54(a) and (b) of the District

Municipalities Act fall within Chap. IX of the Indian Penal Code, viz., Section 171-C, Sub-section (2), Clause (a), he is immune from prosecution

for those offences except under the authority of Government as referred to in Section 196 of the Code of Criminal Procedure. The point is not free

from doubt. In Sesha Aiyar v. Venkatasubba Chetty (1923) 19 L.W. 201 where a Municipal Chairman was prosecuted for offences under the

District Municipalities Act which fell also under Chap. IX-A of the Indian Penal Code, it was held that, though no authority of the Government had

been procured as required u/s 196, Criminal Procedure Code, it was open to proceed with the prosecution as regards those offences under the

District Municipalities Act without any section. This decision is against the view contended for by Mr. Ramadoss, but he argues that the case has

been wrongly decided. The language of Section 196 of the Criminal Procedure Code is very general. It says that

No Court shall take cognizance of any offence punishable under Chapter IX-A of the Indian Penal Code ... unless upon complaint made by order

of, or under authority from, the Governor-General in Council, the Local Government.

The wording of the section would seem to lend some support to the view that, even if the offences alleged are offences punishable under a Local

Act, if they happen to be punishable under Chap. IX-A of the Indian Penal Code, no prosecution either under the Penal Code or under any other

law can be instituted except under the authority from the Local Government as required by the section. If this view is right the decision in Sesha

Aiyar v. Venkatasubba Chatty (1923) 19 L.W. 201 would seem to require reconsideration. But it is not necessary to consider the question any

further in view of the order that we are going to pass in this case and also having regard to the fact that in the amendments proposed in the District

Municipalities Act election offences which fall within the purview of Chap. IX-A of the Indian Penal Code are omitted.

I have now dealt with all the legal objections that have been brought against the prosecution of the 2nd accused. To sum up: he cannot be

proceeded against under Sections 52(2), 56 and 57 of the District Municipalities Act as these Sections, as A. Palaniyappa Chettiar Vs. K.N.

Krishnaswami Chettiar and Others, . have shown, do not apply to him. As regards Sections 54(a) and (b) no section is required u/s 197(1),

Criminal Procedure Code. Section u/s 196-A of the Criminal Procedure Code also is not required as the offence of criminal conspiracy punishable

u/s 120-13 of the Indian Penal Code is not alleged in the complaint. Assuming that the section of the Local Government u/s 196(1) is also not

necessary, we think we are not justified in interfering with the order of the Lower Court as regards this accused for the reason that the allegations

made against him taken as a whole are extremely vague and indefinite. The only definite allegation is that the Municipal Chairman is said to have

wrongfully restrained one or two persons; but they have not come forward with any complaint, nor is the present complaint supported by any

affidavits or statements from them. On a careful perusal of the proceedings in the case we are satisfied that, in the interests of justice, we should not

interfere with the order of the Lower Court as regards the prosecution of this accused. Cr. Rev. Case No. 282 of 1927.--I will now take up

Criminal Revision Case No. 282 against the accused 1 and 3. In this case Mr. Lakshmanna''s main argument is that the order complained against is

an order of acquittal and that we should not interfere with such an order at the instance of a private party. No doubt the learned joint Magistrate

has acquitted these accused u/s 247 of the Criminal Procedure Code; but, in my opinion, the facts do not show that the hearing of the case stood

adjourned to the date on which it was dismissed on account of the absence of the complainant. The case against accused 1 and 3 could not go on

as the entire records had been called up by the District Magistrate in connection with the revision petition relating to the Municipal Chairman, which

I have already referred to. The papers were received back only on the 23rd of February, 1927. On that date fresh summonses were issued against

the accused, and notice was also sent to the complainant mentioning that the case would be heard on the 12th of March, 1927. The summonses to

the accused were served, but 014 the complainant the notice could not be served as he was absent elsewhere. The endorsement on the notice

shows that the complainant had gone to Madras and the returning officer did not know when he would return. When the case was taken up the

complainant''s Pleader filed a petition for adjournment stating that his client had gone to Bombay and Ahmedabad via Madras in connection with

his business some days back and that he had no information that the case was posted for that day. The learned joint Magistrate apparently did not

believe that the complainant had gone to Bombay but stated that

Even if he had gone to Bombay on his own business, it cannot be taken as an excuse for inconveniencing the accused and this busy Court.

I think it is clearly proved from the endorsement on the notice sent to the complainant that he was not in Chirala at the time when this notice

was sent to him; and if he was not there, it is clear that he could not have known that the case had been posted for the 12th of March, 1927. It

cannot therefore be said that he had information that the hearing of the case stood adjourned to the 12th of March. In these circumstances, I

cannot say that the complainant was absent on the date to which the hearing of the case stood adjourned within the meaning of Section 247 of the

Criminal Procedure Code. The order, therefore, dries not amount to an order of acquittal. It is clearly an order of dismissal and can be revised by

this Court.

As regards the 1st accused, it is clear that Section 52(2) of the District Municipalities Act does not apply to him. It is argued that, as in the

case of the 2nd accused proceedings cannot he taken against this accused also, as he is punishable u/s 171-C of the Indian Penal Code, and that,

therefore, section is necessary u/s 196-A of the Code of Criminal Procedure. On this question the opinion that I have already expressed with

reference to the case of the 2nd accused applies to this case also. From what has been said it is clear that section u/s 196-A also is not necessary,

and it is not suggested that section is required u/s 197 of the Criminal Procedure Code before proceeding against this accused.

The substantial offences alleged against the 3rd accused are those which come under Sections 56 and 57 of the District Municipalities Act. It is

conceded that no section u/s 197 of the Criminal Procedure Code is required for prosecuting him for such offences. Section u/s 196 or 196-A also

is not required for proceeding against him as the offences he is charged with are not punishable under Chap. IX-A of the Indian Penal Code and as

I have already held that the complaint does not make out a case of criminal conspiracy u/s 120-B of the Indian Penal Code.

In view of the facts which I have already adverted to, namely, that the complaint is vague and indefinite and the allegations are of a very

unsubstantial character, I think that in the case of these accused also no further proceedings need be taken.

In the result, all the revision cases are dismissed.

Reilly, J.

The petitioner''s complaint, so far as it is against accused 2, the Chairman of the Chirala Municipal Council, was dismissed by the Sub-divisional

Magistrate of Ongole, and the District Magistrate of Guntur refused to interfere with that order in revision, Accused 1 and 3 were afterwards

acquitted by the Sub-divisional Magistrate, who professed to act tinder Section 247, Code of Criminal Procedure.

It is convenient to deal first with all allegations in the complaint against accused 2. The petitioner first complains that accused 2 got some of his

underlings"" entered on the electoral roll who had no right to a vote and so committed an offence punishable u/s 52(2) of the Madras District

Municipalities Act. But under that sub-section the only persons who can be punished are Municipal Officers or servants or polling officers. It is

contended for accused 2 that he is not a Municipal Officer or servant within the meaning of that provision, and it is not suggested that he was a

polling officer. The contention that accused 2, who holds the most important Municipal office in the town, is not Municipal Officer within the

meaning of this sub-section is at first sight surprising. Rut, when we examine the Act, it appears that the expression ""Municipal Officer,'''' as used in

it, does not include the Chairman of a Municipal Council. This is clear from Sections 18(3), 49(2) (iv), 70, 73, 75, 76, 352 and 355(1) (b). It is

suggested for the petitioner that in Section 358, which provides that Municipal Officers, servants, contractors, agents and others shall be deemed

to be public servants within the meaning of Section 21 of the Indian Penal Code, the Chairman must be included in the term ""Municipal Officer"" as

otherwise he will not hold the position given to his subordinates by this section. But that argument is fallacious as Section 21, Indian Penal Code,

itself clearly includes the Chairman of a Municipal Council within the definition of a ""public servant."" Then it is argued for the petitioner that,

whatever ""Munisipal Officer"" may mean in other parts of the District Municipalities Act, in Section 52(2) it must include the Chairman of the

Municipal Council because he is the person chiefly responsible for the electoral roll and in the best position for committing the offences made

punishable by that sub-section, from which it would be anomalous that he should be exempt. But, when we read the rules made under the Act, as

we are bound to do, with the Act, of which they have been made part, we find that the most important part of the Chairman''s duties in connection

with the electoral roll is performed as President of a quasi-judicial tribunal, which may explain why he should be exempted from the scope of

Section 52(2) and that provision be confined to those who are likely to have the custody of the roll or to use it after its preparation. However, I do

not think it is necessary to make any elaborate search for reasons which may have led to the Chairman''s exemption from Section 52(2). If in the

rest of the Act the term ""Municipal Officer"" is used in a sense excluding the Chairman, only an overwhelming reason would justify us interpreting

the term so as to include the Chairman in this sub-section. I agree that the Chairman does not come within the scope of Section 52(2) and,

therefore, accused 2 cannot be prosecuted for an offence punishable under that sub-section.

The complainant next charges accused 2 with offences punishable u/s 54(a) and Section 54(b) of the District Municipalities Act on the ground

that he threatened voters with prosecutions for alleged encroachments or nuisances or with improper raising or levy of profession or property tax in

order to induce them to vote for accused 1 or to abstain from voting for the petitioner at the election in question and that he committed wrongful

restraint of some voters. It has been contended for accused 2 that he cannot be prosecuted for the alleged offence or offences punishable u/s 54(a)

of the Act in the absence of the section required by Section 197, Code of Criminal Procedure, on the ground that he is a public servant to whom

that provision applies. But it is clear that Section 197, Code of Criminal Procedure, is not applicable, the petitioner''s allegation in his complaint

being not that accused 2 did anything when acting or purporting to act in the discharge of his official duty but that at a time when he was not so

acting or purporting to act he threatened that at some future date he would use his official powers to the detriment of the voters concerned. Next it

has been contended that accused 2 cannot be prosecuted for either of the alleged offences punishable u/s 54(a) and Section 54(b) of the District

Municipalities Act because both those offences are now punishable under Chap. IX-A of the Indian Penal Code, and u/s 196, Code of Criminal

Procedure, no Court can take cognizance of any offence punishable under Chap. IX-A without the prescribed section, which has not been

obtained. A good deal might perhaps be said in favour of this contention, and it would require serious consideration but for the fact that it has been

decided by a Bench of this Court in Sesha Aiyar v. Venkatasubba Chetty (1923) 19 L.W. 201 that cognizance can be taken under the District

Municipalities Act of an offence made punishable under that Act, even though it is punishable also under Chap. IX-A, Indian Penal Code, without

the section required by Section 196, Code of Criminal Procedure. In my opinion we must follow that decision. The Magistrate was, therefore, at

liberty to take cognizance of the allegation against accused 2 of offences punishable u/s 54(a) and Section 54(b) of the District Municipalities Act

without the Section required by either Section 196 or 197, Code of Criminal Procedure.

Accused 1, the petitioner''s opponent at the election, was charged in the petitioner''s complaint with committing in concert with accused 2 the

alleged offences punishable under Sections 52(2), 54(a) and 54(b) of the District Municipalities Act. Section 52(2) obviously does not apply to

accused 1 ; but like accused 2 no section under either Section 196 or Section 197, Code of Criminal Procedure, was required for prosecuting

accused 1 for the other two offences.

Against accused 3 the petitioner''s complaint alleged that he as polling officer committed offences punishable under Sections 56 and 57 of the

District Municipalities Act. Those offences are not punishable under Chap. IX-A, Indian Penal Code, and it is not suggested that for accused 3''s

prosecution any section was required u/s 196 or Section 197, Code of Criminal Procedure.

But another contention has been raised for all the accused that the petitioner''s complaint really charges them with criminal conspiracy

punishable u/s 120-B, Indian Penal Code, and for that offence they can be prosecuted only with the section required by Section 196-A, Code of

Criminal Procedure, which has not been obtained. It is true that in the complaint it is alleged that accused 1 and 2 conspired together in respect of

the offences with which they are charged and that accused 3 committed the offence punishable u/s 57 of the District Municipalities Act in

conspiracy with the other accused; and in a supplemental petition presented by the petitioner on 24th October, 1926, he stated that

the main allegation in the complaint is that all the three accused conspired together and committed all the offences jointly and in the same

transaction in promotion of the object of the criminal conspiracy in which all of them are partners.

But it cannot be seriously suggested, when more persons than one are charged by a complainant with the commission of an offence, that

merely because the allegation involves incidentally an implicit or explicit charge of criminal conspiracy the offenders cannot be tried for the alleged

offence unless the section required by Section 196-A, Code of Criminal Procedure, for their prosecution for criminal conspiracy is obtained, If that

were so, no offenders, for instance, could ever be tried for dacoit without previous section for their prosecution for criminal conspiracy. That is

clearly not the effect of Section 196-A, Code of Criminal Procedure, and it is surprising that this contention should have been raised.

The result of the discussion is that there is no technical reason why the Sub-divisional Magistrate should not have proceeded with the charges

against the accused other than those for offences punishable u/s 52(2) of the District Municipalities Act as it is not disputed that the petitioner

complied formally with the requirements of Section 59 of that Act. The acquittal of accused 1 and 3 under colour of Section 247, Code of

Criminal Procedure, appears to me to have been improper, as it is not shown satisfactorily that the petitioner was aware that the case, which had

been adjourned sine die had been re-posted to 12th March, 1927, when he failed to appear. But it has still to be decided whether it is necessary

or proper for us to set aside the Sub-divisional Magistrate''s orders in the case and to direct him to proceed with it. There appears to me to be a

good reason why we should not do so. The petitioner''s complaint is an extraordinary one. I do not think that I have ever seen so vague a

complaint. In regard to none of the offences except that of wrongful restraint is a single definite fact alleged. It is alleged that some of accused 2''s

underlings"" were wrongly entered in the electoral roll and that some voters were threatened, but who they were or when these things were done

there is nothing to show. It is alleged against accused 3 that he announced the names of some voters as having voted for accused 1, informed

accused 2 which voters had supported accused 1, allowed some persons to vote who were not entitled to do so and prevented others who were

entitled to do so from voting; but here again not a single voter''s name is mentioned. In regard to wrongful restraint it is alleged that ""Rattayya and

Raghavalu and some others were detained in the houses of the 1st and 3rd accused under wrongful restraint."" That is the nearest approach to any

definite allegation in the complaint; but even there it is not mentioned who were detained in which house. And it docs not appear that Rattayya or

Raghavalu or any one else himself complained of any such detention. The provisions of Section 59 are obviously introduced into the Act partly with

the object of preventing stories of election offences being invented and worked up at leisure by disappointed candidates or their partisans. If vague

complaints such as this one are accepted and the complainants allowed to fill in the details afterwards, that object will be defeated. In my opinion

the only proper way for the Sub-divisional Magistrate to deal with the complaint would have been to dismiss it at once, and we should certainly not

be justified in allowing the case to be re-opened now. I agree that all these revision petitions should be dismissed.