# RAJ KRUSHNA BOSE v. BINOD KANUNGO AND OTHERS

- **Citation:** [1954] 1 S.C.R. 913
- **Court:** Supreme Court of India
- **Decided:** 1953-09-05
- **Case number:** Civil Appeal No. 239 of 1953
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/raj-krushna-bose-v-binod-kanungo-and-others-282
- **Pages:** 7

## Headnote

'
S.C.R.
SUPREME COURT REPORTS
913
RAJ KRUSHNA BOSE
v.
BINOD KANUNGO AND OTHERS.
fMEHR
CHAND
MAHAJAN
C. J.,
MuKHERJEA,
S. R. DAS,
VIVIAN
BosE and GHULAM
HASAN JJ.]
Constitution
of India,
arts.
136
and
226-Representation
of the people Act, 1951 (Act XL!ll of 1951), ss. 33(2), 99 105, 123
(8)-0rder of the tribunal under s. 105 declared as final and con;
clasive-Whet!rer affects discretionary powers of Supreme Court at:d
High. Courts under arts. 136 and 226-Elected candidate no111inated
or seconded by Governrnent servant-Legal effect
thereof-Orders
of tribunal, contents of.
(1) The unfettered discretionary
powers conferred
on
the
Supreme Court and the High Courts by arts. 136 and 226 of the
Constitution respectively cannot be taken away or whittled dov.·a
by
the legislature and therefore s. I 05 of the Representation
-Of the People Act, 1951, which provides that every order of the
tribunal under the Act shall be final and conclusive did not affect
such powers.
(2) In view of the provisions of s. 16 of the
Representation
of the People Act, 1950,
and the provisions of ss. 33 (2) and
123 (8) of the Representation of the People Act, 1951, an election
to a State Legislative
Assembly is not invalidated
when the
elected member is either
nominated or
seconded
or both
by a
Government servant or servants.
(3) The Supreme Court recorded its disapproval of the way in
which the Election Tribunal shirked its duty and tried to take
a
short cut in
deciding only two of the twelve issues framed and
thus acted against the provisions of s. 99 of the Act.
CIVIL
APPELLATE
JURISDICTION :
Civil
Appeal
No. 239 of 1953.
Appeal by special leave from the Order and Judgment dated
the
5th September, 1953, of the Election
Tribunal, Cuttack, in Election Case No. 5 of 1952.
S. B. fathar for the appellant.
S. P. Sinha
(R. Patnaik, with him) for the respondent.
1954. February 4. The Judgment of Mahajan C.J .•
Mukherjea, . Das and Ghulam Hasan JJ.
was. delivered
by Das J.
Vivian Bose J. delivered
a separate Judgment.
DAs J.-The question here is whether an election to
a State
Legislative
Assembly is invalidated when the
•
1954
Ftb'uary 4.
195+
Raj KntSh11a
Bose
v.
Bi'twd Kanungo
and Others.
Da,].
914
SUPRE.ME COURT REPORTS
[1954]
member's nomination was either proposed or seconded,
or both, by a Government servant or servants.
The appellant
was e minister in the State of Orissa.
He was nominated as a candidate for the Orissa Legislative Assemblv and was later declared to have been
elected.
One . of his rivals was the 1st respondent who
filed an election petition challenging the election on a
number of grounds, among them, the following.
The appellant
had filed about two dozen nomination papers:
In
five
of
them the proposer was a
Government servant and in four the seconder.
The
1st respondent
stated that this was
the first step
in
a scheme
to
get
the assistance
of Government
oi!icers in furtherance of th<'.: appellant's election
and
to
"use and utilise" them "for the purposes of the
election."
There were also other allegations which
we need not consider here.
The appellant made counter allegations against the
1st respondent, whom he had defeated. but they do
not concern us either.
The Election
Tribunal framed twelve issues and
examined 101 witnesses.
but when it came to make
its order it proceeded
to decide only
two
issues
instead of deciding
the whole case. It held that as
the proposers
and seconders
referred
to above
were
admittedly Government
servants
that constituted a
major
corrupt practice and so invalidated
the election
under section 123(8)
of
the Representation of the
People Act, 1951
(No. XLIII of 1951). The other of
the two decided issues
does
not concern this appeal.
The appellant thereupon petitioned the High Court
for a writ of certiorari under article 226 of the Constitution.
The High Court refused to interfere. The
learned Judges held that there was no want of jurisdiction in the tribunal and that the tribunal's view
ot the law was a possible and reaso

## Text

'
S.C.R.
SUPREME COURT REPORTS
913
RAJ KRUSHNA BOSE
v.
BINOD KANUNGO AND OTHERS.
fMEHR
CHAND
MAHAJAN
C. J.,
MuKHERJEA,
S. R. DAS,
VIVIAN
BosE and GHULAM
HASAN JJ.]
Constitution
of India,
arts.
136
and
226-Representation
of the people Act, 1951 (Act XL!ll of 1951), ss. 33(2), 99 105, 123
(8)-0rder of the tribunal under s. 105 declared as final and con;
clasive-Whet!rer affects discretionary powers of Supreme Court at:d
High. Courts under arts. 136 and 226-Elected candidate no111inated
or seconded by Governrnent servant-Legal effect
thereof-Orders
of tribunal, contents of.
(1) The unfettered discretionary
powers conferred
on
the
Supreme Court and the High Courts by arts. 136 and 226 of the
Constitution respectively cannot be taken away or whittled dov.·a
by
the legislature and therefore s. I 05 of the Representation
-Of the People Act, 1951, which provides that every order of the
tribunal under the Act shall be final and conclusive did not affect
such powers.
(2) In view of the provisions of s. 16 of the
Representation
of the People Act, 1950,
and the provisions of ss. 33 (2) and
123 (8) of the Representation of the People Act, 1951, an election
to a State Legislative
Assembly is not invalidated
when the
elected member is either
nominated or
seconded
or both
by a
Government servant or servants.
(3) The Supreme Court recorded its disapproval of the way in
which the Election Tribunal shirked its duty and tried to take
a
short cut in
deciding only two of the twelve issues framed and
thus acted against the provisions of s. 99 of the Act.
CIVIL
APPELLATE
JURISDICTION :
Civil
Appeal
No. 239 of 1953.
Appeal by special leave from the Order and Judgment dated
the
5th September, 1953, of the Election
Tribunal, Cuttack, in Election Case No. 5 of 1952.
S. B. fathar for the appellant.
S. P. Sinha
(R. Patnaik, with him) for the respondent.
1954. February 4. The Judgment of Mahajan C.J .•
Mukherjea, . Das and Ghulam Hasan JJ.
was. delivered
by Das J.
Vivian Bose J. delivered
a separate Judgment.
DAs J.-The question here is whether an election to
a State
Legislative
Assembly is invalidated when the
•
1954
Ftb'uary 4.
195+
Raj KntSh11a
Bose
v.
Bi'twd Kanungo
and Others.
Da,].
914
SUPRE.ME COURT REPORTS
[1954]
member's nomination was either proposed or seconded,
or both, by a Government servant or servants.
The appellant
was e minister in the State of Orissa.
He was nominated as a candidate for the Orissa Legislative Assemblv and was later declared to have been
elected.
One . of his rivals was the 1st respondent who
filed an election petition challenging the election on a
number of grounds, among them, the following.
The appellant
had filed about two dozen nomination papers:
In
five
of
them the proposer was a
Government servant and in four the seconder.
The
1st respondent
stated that this was
the first step
in
a scheme
to
get
the assistance
of Government
oi!icers in furtherance of th<'.: appellant's election
and
to
"use and utilise" them "for the purposes of the
election."
There were also other allegations which
we need not consider here.
The appellant made counter allegations against the
1st respondent, whom he had defeated. but they do
not concern us either.
The Election
Tribunal framed twelve issues and
examined 101 witnesses.
but when it came to make
its order it proceeded
to decide only
two
issues
instead of deciding
the whole case. It held that as
the proposers
and seconders
referred
to above
were
admittedly Government
servants
that constituted a
major
corrupt practice and so invalidated
the election
under section 123(8)
of
the Representation of the
People Act, 1951
(No. XLIII of 1951). The other of
the two decided issues
does
not concern this appeal.
The appellant thereupon petitioned the High Court
for a writ of certiorari under article 226 of the Constitution.
The High Court refused to interfere. The
learned Judges held that there was no want of jurisdiction in the tribunal and that the tribunal's view
ot the law was a possible and reasonable one, accordingly, as . the High Court was not a court of appeal from
the tribunal, they were not called upon to decide the
question as a ~ourt of appeal.
The appellant was granted special leave to appeal
by this court against the order of the Election Tribunal.
•
S.C.R.
SUPREME COURT REPORTS
915
A
question
of
great public
importance affecting
Government
~ervants is involved and we deem it right
to examine
the question under our special jurisdiction
under article 136.
·
The only sections we are called upon to consider are
sections 33 (2) and 123 (8). The former provides that-·
"Any person whose name is
registered
in
the
electoral roll of the constituency and who is not subject
to any disqualification mentioned in section 16 of the
Representation
of the
People
Act, 1950
(XLIII of
1950)
may subscribe as
proposer
or
seconder as
many nomination papers
as there are vacancies to be
filled ... "
. According to the latter-
"The obtaining or procuring or abetting ........ by a
<:andidate or his agent or, by any other person with
the
connivance
of a candidate
or
his agent, any
assistance for the furtherance of the prospects of the
<:andidate's election
from
any person
serving under
the Government of India or the Government of any
State other than
the giving of vote by such person"
shall
be deemed
to be a major corrupt practice for
-the purposes of the Act.
/c corrupt practice of this kind
entails disqualification for
membershi!J
(section 140).
Section 33 (2) is gen~ral and :onfers the privilege
of proposing
or seconding a candidate for election
-0n every person. who is registered in
the electoral roll
provided he is not disqualified under section 16 of the
Act of 1950.
That section excludes three classes of
persons
but
not
Government servants. unless of
course they
happen
to fall within those classes.
Therefore, so far
as section 33(2) is
concerned,
a
Government servant is entitled to nominate or second
a candidate for election unless he happens to fall in
one of the three
excluded
categories.
The question
is whether section 123
(8)
takes away from Government
servants that
which section 33(2) gives
to
them. We do not think it does.
Viewing the question as a plain matter of construction, we find that when section 33(2) was framed those
1954
Raj Krushna
Bose
y.
BiMrl Kanungo
and Others.
Das].
1954
UaJ Krushna
Bose
v.
Ri11od Kanungo
arid Others,
DasJ.
916
SUPREME COURT REPORTS
[19541
who passed it had in mind the desirability
of excluding certain classes of persons from its scope and they
chose to limit those classes
to three.
Therefore, in
the absence of express provision to the contrary elsewhere,
or unless
it follows
by necessary
implication,
the
section
must ·be construed to mean that those
not .expressly
excluded are intended to be included.
As
Government servants
are
not in
the excluded
categories it follows
that so far as this section
is concerned they are not disqualified from proposing and
seconding a candidate's nomination.
Now, does section 123 (8) contain express provision
to
the
contrary or can
such provision be inferred by
necessary implication?
It is usual,
when one section
of an Act takes away what another confers, to use a
nnn abstante
clause
and
say that "notwithstanding
anything contained in section so and so, this or that
will happen",
otherwise, if both sections are clear,
there is a head-on
clash.
It
is the duty of courts to
avoid that and, whenever it is possible to do so, to
construe provisions
which appear to
conflict
so
that
they harmonise.
What exactly does section 123 (8) forbid?
It is the
obtaining
or procuring etc.,
of "any assistance ..... .
other
than
the
giving
of vote
by such person."
Therefore, it is permissible for a candidate to canvass
Government servants
for their votes and if a Government servant chooses to reveal his
hand it would be
permissible
for the candidate to disclose the fact and
use it in furtherance of his election. for the law imposes
no secrecy on the intentions of those who of their owv
free will, choose to say how they intend to vote. They
cannot be compelled to disclose the fact and anv improper attempt to obtain such information would be
a corrupt practice, but
equally, they are not compelled to keep the fact secret if they do not wish to do
so;
nor is tl1e candidate. If therefore the law permits
this, we find it difficult to see how in the same breath
it can be said to have taken away the right expressiy
conferred by section 33(2).
The policy of the law is to
keep Government servants
aloof from politics and al«>
to protect them from being imposed on by those with
S.C.R.
SUPREME COURT REPORTS
917
influence
or in positions of authority and power, and
to prevent the machinery
· ,f
Government from being
used in furtherance of a candidate's return.
But at
the same time it is not the policy of the law to disenfranchise them or to denude them altogether of their
rights as ordinary citizens of tlie land. The balance
between
the
two has, in our opinion, been struck in
the manner indicated above.
But though it is permissible
for a candidate to go
that far, he cannot go further and if the procurement
of Government servants to propose and second
a
nomination is part of a plan to procure their assistance
for the furtherance of
the candidate's
prospects in
other ways than by vote, then section 123(8) is attracted, for in that case,
the plan, and its fulfilment, must
he viewed as a connected whole and the acts of proposing
or seconding which are innocent in themselves
cannot be separated from the rest.
Our conclusion on the preliminarv issue may also be
supported on
another ground.
The maior corrupt
practice referred to in clause (8) of section 123 consists
in obtaining. or procuring or abetting or attempting to
obtain or procure
by a candidate or his agent etc., any
assistance for the furtherance of the prospects of the
candidate's
election
from any person serving under
the
Government of India or
the Government of any
State
other than
the giving
of vote· by such person.
In order, therefore, to bring a case within the mischief
of that clause the assistance must be for the furtherance
of
the prospects
of tl1e candidate's election.
Section 79(b) defines a candidate as meaning
"a person who has been or claims to have been
nominated
as a candidate at
any election,
and
any
such person shall be deemed
to hav~ been a candidate
as
from
the time
when,
with the election
in
prospect, he began to hold himself out as a prospective
candidate."
Unless, therefore, a case falls within the
latter half
of the definition a person becomes a candidate under
the first pan· of the defipition only when he has been
duly nominated as a candidate and the furtherance of
1954
'Jidj 'Krushna
, Bdse
""' v. I
liin"Bd Kanungo
·an~ iJlhtrs.
-· _:t
DasJ.
1954
R•j Kns/rM
Bose
v.
Binod K(]fSUn10
ani Ot tJrs.
Dos.].
918
SUPREME COURT REPORTS
[1954]
the prospects of a candidate's election must, therefore,
in such case commence from
after that stage. Although evidence was adduced on both sides, there has
been no finding so far on questions of fact which may
or
may
not bring the case within the second part of
the definition. In the absence of such a finding the case
must be regarded, for the purpose of the preliminary
issue, as governed
by
the first part of the definition
and as such the proposing and seconding by a Government servant
cannot
be regarded as "assistance for
the furtherance
of
the prospects
of the candidate's
election."
In this
view of the matter also, the judgment of the Election Tribunal cannot be sustained.
We set aside the order of the tribunal and remit the
case to the Election Commission with directions to it
to reconstitute the tribunal which tried this case and
to direct the tribunal to give
its findings on all the
issues raised 1nd to make a fresh order.
Our power to make such an order was not questioned but it was said that when the legislature states that
the orders of a tribunal under an Act like the one here
shall be conclusive and final (section 105),
then we
should not
interfere.
It
is sufficient to say that the
powers conferred on us
by article 136 of the Constitution and
on the High Courts under article 226 cannot
be
taken
aw~y or whittled down by the legislature.
So long as
these powers remain, our discretion and
that of the High Courts is unfettered.
We wish to record our disapproval of the way in
which this tribunal shirked its work and tried to take
a short cut.
It is essential that
these
tribunals
should do t11eir work in foll.
They are ad hoc bodies
to which remands cannot easily be made as in ordinary
courts of law.
Their duty under section 99 is,
"where any charge is made in the petition of any
corrupt or illegal practice having been committed at
the election"
to record
"a finding whether any corrupt or illegal practice
has or has not been proved to have been committed ..... .
and
the nature of that corrupt or illegal practice."
I
'
:S.C.R.
SUPREME COURT REPORTS
919
Also,
"to give the
names
of all persons, if any, who
have been proved at the trial to have been guilty
of
any corrupt or illegal practice and the nature of that
practice."
Their duty does not end by declaring an election to
be void or not because section 99 provides that in addition to that
"at the time of making an order under section 98
the tribunal shall also make an order etc ...... "
A number of allegations were made in the petition
about corruption and illegal practices, undue influence
and
bribery.
It was
the duty of the tribunal not
only to enquire into those allegations, as it did, but
also to complete the enquiry by recording findings
about those allegations and either condemn or clear the
candidate of the charges made.
We make no order about costs.
BosE J.-I
agree on all
but one point. I have
:some doubt about
the reason
given by my learned
brother which is based on the d<:hnition of "candidate"
·in
the
Act. I prefer not to express any opinion on
:that one point.
Case remanded.
Agent for the appellant: Ratnaparkhi Anant Govind.
Agent for respondent No. 1. .-1.. D. Mathur.
SRI SRI SRI KISHORE CHANDRA SINGH DEO
v.
'BABU GANESH PRASAD BHAGAT AND OTHERS.
[MuKHERJEA,
VIVIAN
BosE,
GHULAM
HASAN
and
VENKAIARAMA
AYYAR TJ.)
Indian Registration Act (XVI of 1908), ss. 32, 33-"Resides",
.1neaning -of-Pou•er-of-attorney containing
mistaken
endorsement,
.effect of-Applicability of ss. 32 and 33
to such a case-Legal
.effect of decision under s. 33(1), proviso (i).
1954
Kaj Krus/ma
Bose
v.
Binod Kanungo
and Others,
la.r J.
1954
Marth 9.