# SHRI VIRINDAR KUMAR SATYAWADI v. THE STATE OF PUNJAB. f B. K. MnT<:HERJEA, C.J., VENKATARAMA AYYAR and

- **Citation:** [1955] 2 S.C.R. 1013
- **Court:** Supreme Court of India
- **Decided:** 1953-06-10
- **Case number:** ; Criminal Appeal No. 62 of 1954
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/shri-virindar-kumar-satyawadi-v-the-state-of-punjab-f-b-k-mnt-herjea-c-j-1227
- **Pages:** 9

## Headnote

2S.C.R.
SUPREME COURT REPORTS
1013
SHRI VIRINDAR KUMAR SATYAWADI
v.
THE STATE OF PUNJAB.
f B. K. MnT<:HERJEA, C.J., VENKATARAMA AYYAR and
JAFER IMAM JJ.]
Representation of the People Act, (XLlll of 1951), ss. 33, 36Ci·iminai Procedu1·e Code (V of 1898), ss. 195(1)(b), 476, 476BRetuming Officer--Deciding on the validity or otherwise of nomination paper tmde1· ss. 33, 36 of the Act-Whether a court within the
meaning of ss. 195(1)(b), 476 and 476-B of the Code of Criminal
Procedure.
Held that a Returning Officer acting under ss. 33 and 36 of the
Representation of the People Act, 1951 and deciding on the validity
or otherwise of a nomination paper is not a court within the meaning of ss. 195(1)(b), 476 and 476-B of the Code of Criminal Procedure.
Shell Co. of Australia v. Federal
Commissioner of
Taxation
((1931] A.C. 275 at 296), R. v. London County Council ([1931] 2 K.B.
215), Cooper v. Wilson (rl937J 2 K.B. 309), Huddart Parker and Co.
v. Moorehead ((1908] 8 C.L.R. 330), Rola Co. v. The Commonwealth
((19Hj 69 C.L.R. 185), Bliarat Bank Ltd. v. Employees of Bharat
Bank Ltd. ( [1950] S.C.R. 459), Mehar Singh v. Emperor, (A.I.R.
1933 Lah. 884), Empernr v. Nanak Chand (A.I.R. 1943 Lah. 208),
Har Prasad v. Empero1·, (A.I.R. 1947 All. 139) and Channu Lal v.
Rex ([1950] 51 Cr. l f. JQ9), reforred to.
CRIMINAL
APPELLATE
JURISDICTION ;
Criminal
Appeal No. 62 of 1954.
Appeal by special leave from thr. Judgment and
Order dated the 10th June 1953 of the Punjab High
Court at Simla in Criminal Revision No. 86 of 1953
ari,ing out of the Judgment and Order dated the 7th
January 1953 of the Court of Sessions Judge, Kamal
in Criminal Appeal No. 355 of 1952.
N. C. Chatterjee, (Vir Sen Sawhney and Rajinder
Narain, with him) for the appellant.
Copa! Singh and P. G. Gokhale, for the respondent.
1955
N•v mher 24
195~ .
Shri Virindar
Kt4mar Salyawadi
v.
The Staid of
Puniab
!OH
SUPREME COURT REPORTS
[19551
1955.
November
24.
The

## Text

2S.C.R.
SUPREME COURT REPORTS
1013
SHRI VIRINDAR KUMAR SATYAWADI
v.
THE STATE OF PUNJAB.
f B. K. MnT<:HERJEA, C.J., VENKATARAMA AYYAR and
JAFER IMAM JJ.]
Representation of the People Act, (XLlll of 1951), ss. 33, 36Ci·iminai Procedu1·e Code (V of 1898), ss. 195(1)(b), 476, 476BRetuming Officer--Deciding on the validity or otherwise of nomination paper tmde1· ss. 33, 36 of the Act-Whether a court within the
meaning of ss. 195(1)(b), 476 and 476-B of the Code of Criminal
Procedure.
Held that a Returning Officer acting under ss. 33 and 36 of the
Representation of the People Act, 1951 and deciding on the validity
or otherwise of a nomination paper is not a court within the meaning of ss. 195(1)(b), 476 and 476-B of the Code of Criminal Procedure.
Shell Co. of Australia v. Federal
Commissioner of
Taxation
((1931] A.C. 275 at 296), R. v. London County Council ([1931] 2 K.B.
215), Cooper v. Wilson (rl937J 2 K.B. 309), Huddart Parker and Co.
v. Moorehead ((1908] 8 C.L.R. 330), Rola Co. v. The Commonwealth
((19Hj 69 C.L.R. 185), Bliarat Bank Ltd. v. Employees of Bharat
Bank Ltd. ( [1950] S.C.R. 459), Mehar Singh v. Emperor, (A.I.R.
1933 Lah. 884), Empernr v. Nanak Chand (A.I.R. 1943 Lah. 208),
Har Prasad v. Empero1·, (A.I.R. 1947 All. 139) and Channu Lal v.
Rex ([1950] 51 Cr. l f. JQ9), reforred to.
CRIMINAL
APPELLATE
JURISDICTION ;
Criminal
Appeal No. 62 of 1954.
Appeal by special leave from thr. Judgment and
Order dated the 10th June 1953 of the Punjab High
Court at Simla in Criminal Revision No. 86 of 1953
ari,ing out of the Judgment and Order dated the 7th
January 1953 of the Court of Sessions Judge, Kamal
in Criminal Appeal No. 355 of 1952.
N. C. Chatterjee, (Vir Sen Sawhney and Rajinder
Narain, with him) for the appellant.
Copa! Singh and P. G. Gokhale, for the respondent.
1955
N•v mher 24
195~ .
Shri Virindar
Kt4mar Salyawadi
v.
The Staid of
Puniab
!OH
SUPREME COURT REPORTS
[19551
1955.
November
24.
The
Judgment
of the
Court was delivered by
VENKATARAMA
AYYAR
J.-Thc
appellant was
a
candidate for election
to
the House of the
People
from
the
Kamal
Reserved Constituency
during
the
Ja,t
General Electio;is.
The proviso
to
section 33(3)
of
the
Representation of the
People
Act (XL!II of
1951),
omitting what is not material, enacts "that in
a constituencv where
anv
seat
is
reserved
for
the
Scheduled
C~stes, no
c~ndiate shall be deemed to be
qualified to be chosen to fill that seat unless his nomination
paper is
accompanied
by a
declaration
verified in the prescribed manner that the candidate is a
member of the Scheduled Castes for which the seat
has been so reserved
and the declaration specifies
the
particular caste of which the
candidate
is a member
and aiso the area in relation to which such caste is one
of the Schedule
Castes"_
Rule 6 of the Election
Rules provides that t:1e declaration referred to in the
above proviso shall be verified by the candidate on
oath or solemn affirmation before a Magistrate. Schedule II co;itains
t11c
frmn of nomination paper to he
usd, with the terms in which the declaration is to he
made by the candidate and verified by the Magistrate:
On 5-11-1951
the
appelhnt
signed
two
nomination
papers, each containing the following declaration:
"I hereby declare that I am a member of tbc
Balmiki Caste which has been declared to be a Scheduled Caste in the State of Punjab".
The Balmiki Caste is one of the castes declared to he
.1
Scheduled
Caste
under the
"Constitution
(Scheduled
Castes)
Order, 1950". The above
declaration
was made on solemn affirmation before the First Class
Magistrate,
Kamal,
and the
nomination papers with
the above
declaration
were filed before
the District
Magistrate, Kamal, who was the returning officer. One
Jai Ram Sarup, a member of the Chamar caste, which
is one of the
Scheduled Castes,
was also a candid•tc
for the seat, and he raised the objection that the appellant was not a Balmiki
by caste, and that he was
therefore not oualified to stand for election to the resen·ed Constitu,ency.
Acting on the declaration
afore-
2S.C.R.
SUPREME COURT REPORTS
1015
said,
the
returning
officer
overruled the
objection,
and
accepted
the
nomination
paper of the appellant
as valid. At the polling, the appellant got the majority of votes,
and on 6-3-1952
he was
declared duly
elected.
On 27-8-1952 Jai Ram Sarup filed the application
out of which the present appeal arises, under sections
476 and 195 of the Code of Criminal Procedure before
the
District
Magistrate,
who functioned
as the
returning officer. He therein alleged that the declaration made by the
appellant that he belonged to the
Balmiki caste was false, that, in fact,
he was born a
Muslim and had been converted to Hinduism, and
that therefore "in the
interests of justice" and "for
c;1feguarding the
interests of
the Scheduled Castes'',
proceedings
~hould be
taken for his prosecution. In
his counter-affidavit the appellant stated :
"l am
not
a
Muhammadan by
birth.
On the
other hand, I was born in Balmiki Hindu familv.
I
am a Hindu".
The District Magistrate held an enquiry in which one
Prith Singh Azad, President of the Depressed Classes,
Delhi, gave evidence that the appellant was a Muslim
of the
1~ame of Khaliq. Sadiq, that in 1938 he applied to
the Suddhi Sabha to be converted to Hinduism. that
he was so converted,
and that thereafter he
came to
be known
as
Virindar Kumar.
In cross-examination,
he stated that the appellant had admitted before him
that he was a Muslim by birth. He added that he
had two Muslim wives living at the time of the conversion.
The applicant, Jai Ram Sarup, also produced
ten letters stated to be in the handwriting of the appellant in proof of the above
facts. On 17-9-1952 the
Magistrate passed an order that there wa> a prima
f acie case for taking action, and on 29-9-1952 he filed
a complaint before the First Class Magistrate, Kamal,
charging the appelbnt with offences
under sections
181, 182 and 193 of the Indian Penal Code.
Against this order, the appellant preferred an appeal
to the Court of the Sessions Judge, Kamal, who dismissed the same on the ground th:it the returning
officer was not a Court, that the proceedings before
1955
Shri Virilldar
Kumar Saty awadi
v.
Tiu Stat• of
Punjab
V1nkalarama
AyyarJ.
1955
Shri Vfrindar
Kumar S(Jlyawadi
v.
Thi State of
Punjab
V1nkalarama
,(ryar ].
1016
SUPREME COURT REPORTS
[1955 J
him did not fall under section 476, and that therefore no appeal lay
under section 476-B.
The appellant took the matter in revision before the High
Court, Punjab, and that was heard by Harnam Singh,
J., who held, differing from the Sessions Judge, that
the returning officer
was a Court, and that his order
was therefore appcalable. He, however, held that on
the merits there was no case for interference, and
accordingly dismissed
the
revJSJon.
It is
against this
order
that
the present appeal by
special
leave is
directed.
On behalf of the appella:it Mr. N. C. Chatterjee
argues that having held that the order of the returnmg officer was appealable, the learned Judge ought to
have remanded the case for hearing by the Sessions
Judge on the merits, and that his own disposal of the
matter was summary
and perfunctory. The contention of Mr. Gopal Singh for the respondent is that
the view of the Sessions Judge th!lt the returning
officer was not a court and that his order was not,
therefore, appealable was correct, and that further the
order of the High Court in revision declining to interfere on the merits was not liable to be questioned in
special appeal in this Court.
The first question that arises for our decision is
whether the order of the District Magistrate passed
on 17-9-1952 as returning officer is open to appeal.
The statutory
provisions
bearing on this point
a1"
sections 195, 476 and 476-B of the Code of Criminal
Procedure. Section 195 ( 1) (a) provides that no court
shall take cognizance of any offence punishable under
sections 172 to 188 of the Indian Penal Code except
on the complaint in writing of the public officer concerned or of his superior. Section 195(1) (b) enacts
that no Court shall
take cognizance
of the offences
mentioned therein, where such offence is committed in,
or in relation to, any proceeding in any Court. except
on the complaint in writing of such Court or a Court to
which it is subordinate. The offence under section 193
is one of those mentioned in section 195(1) (b). Section 476 prescribes the procedure to be followed where
a Court is moved to lay . a complaint, and that applies
2S.C.R.
SUPREME COURT REPORTS
1017
only to offences
mentioned in sections 195 ( 1) (b) and
195(1) (c) and not to those mentioned in section 195(1)
(a). Section 476-B provides for an appeal from an order
passed under section
476 to the appropriate
Court.
The result then is that if the complaint relates
to offences mentioned in sections 195 ( 1) (b) and 195 ( 1) ( c), an
appeal would be competent, but not if it relates to
offences mentioned in section 195(1)(a).
Now, the
order of the Magistrate
dated
17-9-1952
directs that
the appellant should be prosecuted for offences under
sections 181, 182 and 193. There is no dispute that
the order in so far as it relates to offences under sections 181
and
182
is
not appealable,
as
they fall
directly under section 195(1) (a). The controversy is
only as regards
the
charge
under
section 193.
Section 193
makes
it an offence to give
false
evidence
whether it be in a judicial proceeding or not, and it
likewise makes it an offence to fabricate false evidence for use in a judicial
proceeding or elsewhere.
If the offence is not committed in a judicial proceeding, then it will fall outside section 195 (1) (b) ,- which
applies only when it is committed in or in relation to
a proceeding in Court, and there is in consequence no
bar to a complaint l:ieing
made in respect thereof unaffected
by
the
restrictions
contained
in
section
195(1)(b ). But if the offence under section 193 is
committed in or in relation
to a proceeding in Court,
then it will fall under section 195 ( 1 )(b), and the order
directing prosecution under section 476 will be appealable
under
section
476-B.
The
point
for
decision
therefore is whether the returning officer in deciding
on the validity of a nomination paper under
~ection
36 of the Act can be held to act as a Court. The
question thus raised does not appear to be covered by
authority,
and ln:; to be decided on the true character
of the functions
of the returning officer and the
nature and the extent of his powers.
"There has been much difference of opinion as
to
the precise
character of the
office
of
a
returning
officer, viz., as to whether he is a judicial or ministerial officer", says Parker on Election Agent and Returning Officer,
Fifth Edition, page 30.
The true
1955
Shri Virint!ar
Kumm Sat;Jawadi
v.
Thi Stale of
Punjab
V enkatarama
Ayyar ].
1955
Shri Virindar
Kumar Satyawadi
v.
The Slat1 of
Punjab
V1nkatarama
Ayyar J.
1018
SUPREME COURT REPORTS
(1955]
view, according to him, is
that he partakes of both
characters,
and
that 'in
determining
objections
to
nomination papers,
he is
a judicial officer. That is
also the view taken in Indian decisions.
But before
we can hold that the proceedings before a returning
office!
resulting in
the
acceptance
or rejection of
a
nomination paper fall wiJhin section J95(l)(b) of the
Code of Crirn:nal Procedure, it must be shown not
merely that they
are
judicial in character but that
fur the! he is acting as a Court in respect thereof. It
is a familiar feature of modern legislation to set up
bodies and tribunals,
and entrust
to them work of a
judicial
character, but they are not
Courts in the accepted sense of that term, though they may possess,
as observed by Lord Sankey, L.C. in Shell Company of
Austral/a v. Federal Conl1n/ssio11er of Taxation(
1 ), some
of the
trappings of a Court. The distinction between
Courts
and
Tribunals
exercising
quasi-judicial
functions is well established,
though whether an authority
constituted
by
a
particular
enactment
falls
within
one category o;·
tl1e other may, on the provisions of
that emctment, be open to argument.
There has been considerable discussion in the Courts
in England and Australia
as to what are the essential
characteristics
of a Court as
distinguished from
a
tribuna!
e;.rcrmmg
quasi-judicial
functions.
Vide
Shell Company
of Australia v. Federal Commissioner
of Taxation('), R.
v.
London
County
Council('),
Cooper
v.
Wilson(.'), Hurl dart Parker
and Co.
v.
Moorehead('), and Rola Co. v. The C~mmonwealth (').
In this Court, the question was considered in some
fuln(:" in Tiharat Bank Ltd. v.
Employees of Bharat
Bani: Ltd.( ).
It is unnecessary to traverse
the
same
ground once again. It may be stated broadlv that
what distinguishes a Court fro1n a quasi-judicial tribu.
rrai is thot it is
charged with a duty
to decide disputes in a judicial manner and decbre the .rights of
parties in a definitive judgment. To decide in a judicial manner involves that the parties are entitled as
(IH19.1!1 A.C:. 275. 296.
(3) [: 937] 2 I<..D. 309.
(5) [19H] 69 C.L.R. 185.
(2., [ 911] 2 K.B. 2\5.
(11 [ 908] 3 C.LR. '.130.
(6) [ 950] S.C.R. 459.
2 S.C.R.
SUPREME COURT REPORTS
1019
a matter of right to be heard in support of their claim
and to adduce evidence in proof of it. And it also
imports an obligation on the part of the authority to
decide
the matter on a consideration of the evidence
adduced
and in accordance with law. When a question therefore
arises
as
to whether
an authority
created by an Act is a Court as distinguished from a
quasi-judicial
tribunal,
what
has
to be
decided
is
whether having regard to the provisions of the Act it
possesses all the attributes of a Court.
We have now to decide whether in view of the
principles above stated and the functions
and powers
entrusted to the returning officer under the Act, he
is
a court. The statutory provision bearing on this
matter is section 36. Under section 36(2), the returning officer has to examine the nomination paper and
decide
all obiections which mav be
made thereto.
This power is undoubtedly judicial in character. But
in exercising this power, he is authorised to come to
a decision "after such summary enquiry, if any, as he
thinks
necessary". That means that the
parties
have
no right to insist on producing evidence which they
mav desire to .adduce in support of their case. There
is no machinery provided for summoning of witnesses,
or
of
compelling production
of
documents
in an
enqmry
under section
36.
The
returning officer
is
entitled to act suo motu in the matter. When one
compares this procedure with that prescribed for trial
of election petitions by the Election Tribunal under
sections 90 and 92 of the Act, the difference between
the two becomes marked. While the proceedings before the Election Tribunal approximate in all essential
matters to proceedings in civil courts, the proceedings
under section 36 present a different picture. There is
no !is, in which persons with opposing claims are
entitled to have their rights adjuoicated in a judicial
manner, but an enquiry such as
is
usually
conducted
by an ad hoc tribunal entrusted with a quasi-judicial
power. In other words, the function of the returning
officer acting under
section 36 is judicial in character,
but he is not to act judicially in discharging it. We
are of opinion that the returning officer deciding on
M-85 S. C. India/59
1955
Shri V rindar
K •mar Satyawadi
v.
The State of
Ponjab
V enkatarama
Ayyar J.
19;5
Sltri Viriru/ar
K11ntar S1dyarotJtli
v.
T/r4 Stale of
PW!ia6
V1nkatarbma
Ayyar].
1020
SUPREME COURT REPORTS
[1955J
the validity
of a nomination paper is not a Court foe
the purpose of section 195(1)(b) of the Code of Criminal Procedure, and the result is that even as regards
the
charge
under
section
193, the order of the
Magistrate was not appealable, as the offence was not
committed in or in relation to any proceeding in a
Court. In this view, the learned Sessions Judge was
right in dismissing the appeal as incompetent, and
the question argued by Mr. N. C. Chatterjee that the
learned Judge of the High Court ought to have
remanded the case for hearing by the Sessions Judge
on the merits does not arise.
It was next argued for the appellant that as the
application for
initiating
prosecution under section
193 was made under section 476 on the assumption
that the returning officer
was
a court,
the order
passed thereon must, in the view that he was not a
Court, be quashed as without jurisdiction. But then,
it should be noted that the application was presented
under section 195 also, and it was necessary to move
the returning officer
under section 195 ( 1 )(a)
with
reference . to the offences under sections 181 and 182,
and there could be no question of quashing the order
as
without jurisdiction. Even as regards section
193,
the position is this : It has no doubt been held
that
section 476 must be taken to be exhaustive of all the
powers of a' Court as such to lay a complaint, and
that a complaint filed
by it otherwise than under that
section should
not be entertained.
But
there is
abundant authority that section 476 does not preclude the officer presiding over a Court from himself
preferring a complaint,
and that the
jurisdiction
of
the Magistrate before whom the complaint is laid to
try it like any other complaint is not
taken away
by
that section. Vide · Meher Singh v. Emperor( ), Emperor
v. Nanak Chand('), Har Prasad v. Emperor(') and
Channu Lal v. Rex('). There is thus no legal impediment to a returning officer filing a . complaint under
sections 181 and 182 as provided in section 195(1)(a)
and charging the accused therein with also an offence
(I) A.LR. 1933 Lah. 884.
(2) A.l.R. 1943 Lah.208.
(3) A.l.R!947 A. 11. 139.
(4) [1950] 51 Cr. LJ. 199.
2S·C.R.
SUPREME COURT REPORTS
1021
under section 193, In this connection, it should be
mentioned that the appellant himself took the objection before the Magistrate that qua returning officer
he was not a Court and that the proceedings under
section 476
were
incompetent,
and
that
that was
overruled on the ground that it was an enabling section. There is, therefore, no ground for holding that
the order dated 17-9-1952 was without jurisdiction.
It was finally contended that the Magistrate was
under a misapprehension in stating that the appellant had
declared
that he was
born a Balmiki,
whereas, in fact,
he only declared that he was a
Balmiki by caste.
But it was the appellant himself
who pleaded in his counter-affidavit that he was not
a Muslim by birth, and was born in a Balmiki Hindu
family, and the observation of the Magistrate has obvious
reference to what was pleaded and argued by
the appellant. And it should also be noted that no
objection was taken either in the grounds of appeal
to the Sessions Court or in revision to the High Court
with reference
to the above remark. Moreover, the
charge as laid in the complaint is that the declaration
of the appellant in the nomination paper that he
"was a member of the Balmiki caste" was false. There
is accordingly no substance in this contention.
It must be emphasised that in the view that the
order of the Magistrate dated
17-9-1952 was final, this
appeal being really directed against that order there
must be exceptional grounds before we can interfere
with it in special appeal, and none such has
been
established.
On
the
other hand, whether
action
should be
taken under section
195
is a matter primarily for the Court which hears the application, and
its discretion is not to be lightly interfered with in
appeal, even when that
is
competent.
But where,
as here, the legislature does not provide for an appeal,
it is preposterous on the part of the appellant to invite this Court to interfere in special appeal.
This appeal is accordingly dismissed.
1955
S/lri 'VirilfliM
JC' umar SalJawadi
v.
Tl11Stal1of
Punjab
V 1nkalarar114
Ayyar J.