RAJ KRUSHNA BOSE v. BINOD KANUNGO & Ors.

two dozen nomina had filed about them the proposer was a tion papers: seconder. The Government servant and in four 1st of Government oi!icers the purposes of the election." There were also other allegations which we need not consider here. this was the assistance in furtherance of th<'.: appellant's election "use and utilise" them "for stated The appellant made counter allegations against the they do 1st respondent, whom he had defeated. but not concern us either. twelve it proceeded The Election Tribunal framed but when to decide only examined 101 witnesses. its order instead of deciding the proposers and seconders admittedly Government under section 123(8) People Act, 1951 the two decided issues does not concern this appeal. issues and it came to make issues that as to above were that constituted a the election the Representation of the (No. XLIII of 1951). The other of corrupt practice and so invalidated the whole case. referred servants It held the High Court The appellant thereupon petitioned for a writ of certiorari under article 226 of the Con to interfere. The stitution. The High Court refused there was no want of juris learned Judges held the tribunal's view diction the law was a possible and reasonable one, accord ingly, as . the High Court was not a court of appeal from they were not called upon to decide the question as a ~ourt of appeal. the tribunal and that tribunal, The appellant was granted special leave to appeal by this court against the order of the Election Tribunal. • 1954 Raj Krushna Bose y. BiMrl Kanungo and Others. Das]. S.C.R. SUPREME COURT REPORTS 915 question A Government ~ervants is to examine under article 136. great public importance affecting involved and we deem it right the question under our special jurisdiction · The only sections we are called upon to consider are (8). The former provides that-· sections 33 (2) and 123 registered "Any person whose name electoral roll of the constituency and who is not subject to any disqualification mentioned in section 16 of the Representation (XLIII of seconder as 1950) may subscribe as many nomination papers there are vacancies to be filled ... " People Act, 1950 proposer of the . According to the latter- Section 33 connivance from any person India or for membershi!J (2) is gen~ral and :onfers or seconding a candidate "The obtaining or procuring or abetting ........ by a <:andidate or his agent or, by any other person with his agent, any of a candidate the prospects of the assistance for the furtherance of serving under <:andidate's election the Government of the Government of any the giving of vote by such person" State other to be a major corrupt practice for be deemed /c corrupt practice of this kind -the purposes of the Act. (section 140). entails disqualification the privilege of proposing for election the electoral roll -0n every person. who is registered in provided he is not disqualified under section 16 of the Act of 1950. That section excludes three classes of not Government servants. unless of persons those classes. course is concerned, a Therefore, so far to nominate or second Government servant to fall in a candidate for election unless he happens The question one of the three excluded categories. takes away from Govern is whether section 123 servants them. We do not think it does. that which section 33(2) gives as section 33(2) fall within is entitled happen (8) Viewing the question as a plain matter of construc tion, we find that when section 33(2) was framed those 1954 UaJ Krushna Bose v. Ri11od Kanungo arid Others, DasJ. 916 SUPREME COURT REPORTS [19541 limit those classes three. Therefore, who passed it had in mind the desirability of exclud ing certain classes of persons from its scope and they chose to to the contrary else the absence of express provision where, or unless implication, to mean that those to be included. the excluded As Government servants categories it follows is con cerned they are not disqualified from proposing and seconding a candidate's nomination. ·be construed excluded are intended that so far as this section it follows by necessary section must .expressly not in contrary or can implication? takes away what another confers, Now, does section 123 (8) contain express provision such provision be inferred by It is usual, when one section to use a say that "notwithstanding this or that if both sections are clear, is a head-on the duty of courts to It that and, whenever it is possible to do so, to necessary of an Act nnn abstante clause anything contained will happen", construe provisions which appear to conflict they harmonise. in section so and so, otherwise, clash. giving forbid? to disclose for the candidate What exactly does section 123 (8) is permissible for a candidate It is the or procuring etc., of "any assistance ..... . obtaining by such person." of vote to canvass Therefore, for their votes and if a Govern Government servants hand it would be ment servant chooses to reveal his the fact and permissible it in furtherance of his election. for the law imposes no secrecy on the intentions of those who of their owv to vote. They free will, choose the fact and anv im cannot be compelled to disclose information would be proper attempt to obtain such they are not com a corrupt practice, but if they do not wish to do to keep pelled tl1e candidate. If therefore the law permits so; this, we find it difficult the same breath to see how in it can be said to have taken away the right expressiy conferred by section 33(2). The policy of the law is to aloof from politics and al«> keep Government servants those with imposed on by to protect them from being to say how they intend the fact secret equally, 1954 'Jidj 'Krushna , Bdse ""' v. I liin"Bd Kanungo ·an~ iJlhtrs. -· _:t DasJ. S.C.R. SUPREME COURT REPORTS 917 in furtherance of a candidate's the policy of or in positions of authority and power, and influence · ,f Government from being the machinery to prevent return. But at the same law to dis enfranchise them or to denude them altogether of their rights as ordinary citizens of land. The balance between two has, in our opinion, been struck in the manner indicated above. it is not But though it is permissible to propose and second for a candidate to go that far, he cannot go further and if the procurement of Government servants a nomination is part of a plan to procure their assistance prospects in is attract other ways ed, for in that case, the plan, and its fulfilment, must he viewed as a connected whole and the acts of pro or seconding which are innocent in themselves posing cannot be separated from the rest. the furtherance of than by vote, the candidate's then section 123(8) Our conclusion on the preliminarv issue may also be another ground. The maior corrupt referred to in clause (8) of section 123 consists by a candidate or his agent etc., any furtherance of the prospects of the from any person serving under the Government of any the giving of vote· by such person. therefore, to bring a case within the mischief for the further tl1e candidate's election. supported on practice in obtaining. or procuring or abetting or attempting obtain or procure assistance candidate's the Government of India or State In order, of that clause Section 79(b) defines a candidate as meaning the assistance must be election the prospects other than "a person who has been or claims as a candidate at any election, and to have been to hav~ been a candidate the election to hold himself out as a prospective time when, with nominated such person shall be deemed prospect, he began candidate." Unless, latter half therefore, a case falls within the 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 R•j Kns/rM Bose v. Binod K(]fSUn10 ani Ot tJrs. Dos.]. 918 SUPREME COURT REPORTS [1954] therefore, the prospects of a candidate's election must, in such case commence after that stage. Al though evidence was adduced on both sides, there has been no finding so far on questions of fact which may not bring the case within the second part of or may the definition. In the absence of such a finding the case for the purpose of the preliminary must be regarded, the first part of the definition issue, as governed the proposing and seconding by a Govern and as such ment servant of the candidate's the furtherance the judg election." ment of the Election Tribunal cannot be sustained. be regarded as "assistance view of the matter also, cannot the prospects In this ' We set aside case to the Election Commission with directions to reconstitute the tribunal which tried to direct tribunal issues raised 1nd to make a fresh order. the order of the tribunal and remit the this case and its findings on all the to give Our power to make such an order was not question it was said that when the legislature states that ed but the orders of a tribunal under an Act like the one here shall be conclusive and then we is sufficient to say that the should not It interfere. powers conferred on us by article 136 of the Constitu the High Courts under article 226 cannot tion and aw~y or whittled down by the legislature. So remain, our discretion and that of the High Courts is unfettered. long as (section 105), these powers We wish this tribunal shirked It to record our disapproval of the way in to take a short cut. 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, its work and tried is essential "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 ..... . 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 to have been guilty of the nature of that have been proved at the trial any corrupt or illegal practice and practice." 1954 Kaj Krus/ma Bose v. Binod Kanungo and Others, la.r J. Their duty does not end by declaring an election to be void or not because section 99 provides that in addi tion 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 the tribunal not those allegations, as it did, but findings the enquiry by about those allegations and either condemn or clear the candidate of the charges made. bribery. to enquire to complete It was the duty of recording We make no order about costs. BosE J.-I agree on all the reason I have learned is based on the d<:hnition of "candidate" to express any opinion on I prefer not but one point. given by my :some doubt about brother which ·in the Act. :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, to such a case-Legal .effect of-Applicability of ss. 32 and 33 .effect of decision under s. 33(1), proviso (i). 1954 Marth 9.