Satya Narain Chaube vs Lal Chand Ojha and Another

Srivastava, J.—This is a petition under Article 226 o� the Constitution. In connection with the election to the office of the Pradhan of Gram Sabha Ganeshraipur, pargana Bhadohi, district Varanasi, an election petition No. 10 of 1955 was filed and was being heard by opposite-party No. 1 as an election tribunal. In that election petition the petitioner appeared as a witness and made statement on oath. After the election petition had been decided the opposite-party No. 2 made an application to the election tribunal u/s 479 Cr. P. C. He alleged that the petitioner had committed the offence u/s 193 I. P. C. by making a false statement, on oath and prayed that after an enquiry a complaint be filed against him for that offence. The application was opposed on behalf of the petitioner. He denied that he had made a false statement. He, also contended that the opposite-party No. 1 had no right to proceed u/s 470 Cr. P. C. and file a complaint against him. By his order dated 7-8-1956 the opposite party No. 1 directed that a complaint u/s 193 I. P. C. be lodged in a competent court against the petitioner. By the present petition under Article 226 of the Constitution the petitioner wants that order of the opposite party No. 1 to be quashed by a writ of certiorari.

When the petition came up before Mr. Justice Dhavan for hearing two main contentions were pressed in support of it. The first was that the opposite party had been constituted as an election tribunal u/s 12-G of the Panchayat Raj Act. Such a tribunal was not a civil, revenue or criminal court which could take action u/s 476 Cr. P. G. In fact, it was not a court at all. The other contention was that Section 476 really stood repealed by Section 479-A Cr. P. C. As while deciding the election petition the tribunal had not itself taken action u/s 479-A of the Code it was not open to it, at the instance of the opposite-party No. 2, to direct that a complaint be filed against the petitioner for an offence u/s 193 I. P. C.

In support of the second contention, learned counsel for the petitioner placed reliance on the case of Jai Bir Singh Vs. Malkhan Singh and Another, . For supporting the first contention be relied upon three cases : Kedar Nath Vs. S.N. Misra and Another, , Mahadeo and Others Vs. The Sub-Divisional Officer, Kunda and Others, and U Aung Myin v. District and Sessions Judge, Henzada AIR 1940 Ran. 148.

By the time the petition came up for hearing the case of Jai Bir Singh Vs. Malkhan Singh and Another, had been considered by a Division Bench of this Court in Durga Prasad Khosla Vs. The State of Uttar Pradesh, and had been expressly dissented from. The learned Judge who was considering the writ petition, however, thought that there were certain aspects of the question, particularly the constitutionality of Section 479-A which had not been considered either in Jai Bir Singh Vs. Malkhan Singh and Another, or in the case of Durga Prasad Khosla Vs. The State of Uttar Pradesh, . He was also Of opinion that the first contention raised ,by the petitioner was important enough to be considered by a larger Bench. He, therefore, referred the entire writ petition for being heard by a larger Bench to be constituted by the Hon''ble the Chief Justice. That is how the petition is now before us.

When the case was called up before us we were told that the learned- counsel who represented opposite-party No. 2 had no instructions. Sri. K. B. Asthana, the junior Standing Counsel also stated that he had not been instructed by the State in the case. We, however, requested him to assist us in the case and he agreed to do so.

After hearing the learned counsel for the petitioner as well as Sri K. B. Asthana we find that the case can be disposed of on a short point and it is not necessary at all to go into, the various questions connected with the second contention which Mr. Justice Dhavan thought deserved consideration by a larger Bench.

It appears to be obvious and has, in fact, been conceded by Mr. Asthana, on behalf of the State, that the tribunal which was hearing the election petition under the Panchayat Raj Act could not be considered to be a civil, criminal or revenue court. Much argument is not needed to show that it was not functioning as a criminal court. The Full Bench case of Kedar Nath Vs. S.N. Misra and Another, is an authority for the proposition that the tribunal was not a civil or revenue court either. In fact, as was held in that case, the opposite-party No. 1 who was acting as a tribunal was acting as a persona designata.

The very opening words of Section 476 Cr. P. C. show that action under that section can be taken only by a civil, revenue or criminal court. A court or tribunal which does not fall under any pf those categories cannot proceed under this section. If, therefore; the opposite-party No, 1 was not a civil, revenue or criminal, court he could not, entertain any application under that section. Nor could he hold any enquiry as contemplated by that section or file a complaint under Clause (1), of it.

It was, however, under that section that the opposite party No. 1 entertained the application of the opposite-party No. 2 and directed that a complaint be filed against the petitioner. The action taken against the petitioner under that section thus becomes without jurisdiction and is liable to be quashed by a writ of certiorari.

In this view of the case we need not go^ into the larger question whether the opposite-party No. 1 was a court at all. Even if he was functioning as a court as he was not a court to which Section 476 Cr. P. C. applied he could not take action, under it. The impugned order having been passed under that provision alone cannot therefore be upheld.

The petition therefore succeeds. The order of the opposite-party No. 1 dated 7-8-1956 is quashed by a writ of certiorari. As the opposite parties did not appear to contest the application there will be no order as to costs.