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Criminal Revision Application No. 296 of 1953, decided on 26th May/22nd July 1954.
(a) Criminal Procedure Code (V of 1898), S. 195 (1) (b) (c), (2)‑Revising Authority appointed to dispose of claims and objections relating to electoral rolls‑Not a "Court"‑Sanction to prosecution for offences under Ss. 193, 465, etc., P. P. C., in. respect of a proceeding before such Authority not required. (Agha, C. J., with whom Muhammad Bachal, J., agreed, Vellani, J., contra) Sind Legislative Assembly Electoral (Preparation, Revision and Publication of Electoral Rolls) Rules, 1936, Rules 22 and 23.
The provisions made under rule 22, Sind Legislative Assembly Electoral (Preparation, Revision and Publication of Electoral Rolls) Rules, 1936, show that the First Class Sub Judge, appointed as a Revising Authority under the rule, in deciding a claim acts as a persona designata, and not as a Court.
Provisions of section 195 Cr. P. C. do not apply in respect of a prosecution for offences under sections 193, 197, 198, 199, 465, 471, 477A alleged to have been committed in relation to a claim preferred before the Revising Authority.
--‑The rules definitely provide in clause (5) of Rule 22 that the Revising Authority was not acting as a Civil Court. On the contrary it says that if the nature of the application made to him is such that it cannot be determined summarily and should be adjudicated upon by a Civil Court, he shall reject such claim or objection. This clearly shows that, in his capacity as a Revising Authority, the Sub‑Judge was not acting as a Civil Court.
(agreeing with Agha, C.J.).‑The answer to the question whether the Subordinate judge acted as a Court must rest on a proper reference to the above Order [Government of India (Provincial Legislative Assemblies) Order, 1936] and Rules [Sind Legislative Assembly Electoral (etc.) Rules, 1936] and decisions on other matters not in pari materia and differently worded cannot be of much assistance. All the High Courts have held that a Court should have autho rity to take evidence on oath. A Court cannot function properly unless it is armed with certain powers, such as the power to record evidence bearing on the matter which it is called upon to decide, the power to enforce the attendance of witnesses and the production of documents and material objec tions before it and the power to pronounce judgment and carry it into effect between the persons and parties who bring a case before it (see Bouvier's Law Dictionary), Thus a Court must not only be charged with judicial functions but also be invested with powers.
These conditions were not satisfied by Rule 22 of Sind Electoral Rules.
Lord Strickland v. Giuseppe Grime A I R 1930 P C 227 ref.
(contra).‑There is no indication in these rules [Sind Legislative Assembly Electoral (etc.) Rules, 1936] that considerations of executive or administrative policy enter into the making of the Revising Authority's decisions. Indeed the power and duty to be exercised in arriving at a decision upon the justiciable issue appear entirely free from considera tions of executive or administrative policy and that view is supported by the requirement that a Judge shall be the Revising Authority. His decision is definitive in that it either affirms or, denies, finally, a person's right of vote. The function of the Revising Authority is therefore a judicial one notwithstanding that the decision is not open to appeal or revision and there is no express provision in the rules for summoning witnesses.
Two considerations are crucial : firstly, the effect of the substitution of the word "includes" for the word "means" in subsection 2 of section 195, Cr. P. C., widens the meaning of the word "Court" in Clauses (b) and (c) of subsection (1) of section 195 to include a judicial as distinguished from an admi nistrative tribunal ; and secondly, the object or policy of clauses (b) and (c) of subsection (1) of section 195 Cr. P. C. which is to guard against vexatious, groundless or improper prosecutions for offences therein mentioned, is carried out more fully when applied not only to ordinary Civil, Criminal and Revenue Courts but also to other judicial tribunals. Their cumulative effect is decisive.
The conclusion I have arrived at is that the question which falls for determination in this case should be answered in the affirmative and that cognisance is barred for want of a com plaint by the Court, viz., the Revising Authority under the Rules.
[Case‑law referred to].
(b) Sind Legislative Assembly Electoral (Preparation, Revi sion and Publication of Electoral Rolls) Rules, 1936, Rule 24 --Finality of Revising Authority's order as to inclusion, or exclusion of a name from the Rolls does not bar prosecution for offences of perjury, forgery, etc. committed in relation to a proceeding before such Authority.
Dharamdas Mulchand, for Applicants.
Tufail Ali Abdur Rahman, Assistant to the Advocate- General, assisted by Dialmal for Opponent.
‑May 26th, 1954.‑This is a revision applica tion filed by Ahmad Sultan and four others to quash the proceedings pending against them in the Court of Mr. Fazul Elahi Allah Bakhsh Ansari, the Special Judge, Sukkur,
The facts briefly are that applicant Ahmad Sultan intended to contest the Sind Legislative Assembly Election, and as his name was not in the List of Voters, he made an application to the revising authority, who was the First Class Sub‑Judge, Larkana, for entering .his name in the roll of voters. This application is headed : "In the Court of Revising Authority and First Class Sub‑Judge, Larkana." The application was opposed, and one of the grounds for the opposition was that the applicant Ahmad Sultan did not possess the requisite age qualification. The Revising Authority, after taking evidence, allowed the application of Ahmad Sultan and directed his name to be entered in the roll of voters. Thereafter allega tions were made that Ahmad Sultan and others had entered into a conspiracy to fabricate false evidence and commit other offences with a view that Ahmad Sultan's name may be entered in the list of voters. The Anti‑Corruption Police, investigated this matter and eventually prosecuted the applicants. During the course of the trial, the point was raised that sanction under section 195 Cr. P. C. was necessary. The application was dismissed and thereafter the applicants have come to this Court. Their prayer is that the proceedings pending against them may be quashed.
The main ground on which the above prayer is made is mentioned in paragraphs 6 and 10 of this application; the relevant portions of these paragraphs read as under:‑
"6. At the trial it was revealed that all these charges and reference to a judicial proceeding which had been insti tuted before the First Class Sub‑Judge, Larkana, and the aforesaid offences had relation to proceedings in a Court of Law. As provided by section 195 (1) (b) and (c), Cr. P. C., there was no complaint or sanction of the First Class Sub‑Judge, enabling the Court of the Special judge to assume jurisdiction . . . .
10. That apart from the offences referred to in the charge, covered by section 195 (1) (b) and (c) the remaining offences have been introduced for the purpose of circum venting the provisions of section 195."
The only other ground taken in the application is that the order passed by the Revising Authority and First Class Sub- Judge, Larkana, "was final and cannot be questioned by any Court of Law or otherwise."
Before discussing the points raised by Mr. Dharamdas, the learned Advocate who appears for the applicants, the charge against the applicants may be usefully reproduced here :‑
"I, Fazul Illahi Allah Bakhsh Ansari, Esquire, Special Judge, Sukkur, hereby charge you
(1) Ahmad Sultan, son of Mir Muhammad,
(2) Gul Muhammad, son of Biro,
(3) Dhani Bakhsh, son of Ali Sher,
(4) Abdul Ghafoor, son of Khush Muhammad, and
(5) Dr. Muhummad Mustafa, Arain, as follows :‑
That you from about the beginning of January 1951 till the end of March, 1951, in the Larkana District, were parties to a conspiracy to do and cause to lie done an unlawful act to wit to induct Ahmad Sultan Chandio, a statutorily disqualified person, into the Sind Legislative Assembly by unlawful and illegal means to wit abetment and the commission of offences of bribery, fabrication of false evidence, falsification of record, forgery, giving of false evidence, using false evidence, securing of illegal orders, being offences punishable under sections 109, 193, 197, 198, 199, 465, 471, 477A of the P. P. C., and that the same act, to wit, induction of Sultan Ahmad was done in pursuance of your conspiracy and thereby committed an offence punishable under section 120‑B of the P. P. C.
And further that you, Ahmad Sultan, at the aforesaid place and the aforesaid dates, in pursuance of the said conspiracy, abetted accused Dr. Muhammad Mustafa, Arain, to commit the aforesaid offences under sections 193, 197, 199 of the P, P. C.;
(b) That you fraudulently used as genuine the false entries in the school general register, the vaccination register and the certificate issued by the Mukhtiarkar, which you knew, to be forged and fabricated and you corruptly used the false age certificate issued by Dr. Muhammad Mustafa Arain, knowing the same to be false in material;
(c) That you made a false statement in your declaration before the Revising Authority ;
And thereby committed offences punishable under sections 198, 199, 471 of the P. P. C. and sections 204, 193, 477‑A read with 109 of the P. P. C.
And further that you Gul Muhammad in pursuance of the aforesaid conspiracy at the aforesaid time and place, along with witness Abdul Fattah, committed an offence of forgery of public record to wit the vaccination register with intent to defraud, obliterated and rendered illegal a part of the said register with the intention of preventing the same from being used as evidence before the Revising Authority and fabricated false evidence in the register and he being public servant committed offences under sections 193, 204, 477‑A, 466 of the P. P. C.; you abetted him in the commission of the said offences and thereby com mitted offences punishable under section 109 read with 193, 204, 477‑A and 466 of the P. P. C.
(b) That by giving a bribe to Abdul Fatah to the extent of Rs. 100 .you abetted him in abusing his position to obtain the money by corrupt and illegal means as illegal gratification being a motive or reward for committing the aforesaid offences, and thereby committed offences, punish able under section 109 read with section 161 of the P. P. C. and section 5 (2) of Act II of 1947 ;
And further you Dhani Bakhsh in pursuance of the aforesaid conspiracy at the aforesaid time and place being a public servant, wilfully, with intent to defraud, mutilated and falsified and destroyed a part of the Ghebidero school general register which belonged to the Educational Depart ment, which you may have been lawfully compelled to produce as evidence before the Revising Authority, with intention of preventing the same from being used as evidence before the Revising Authority and thereby committed offences under sections 204, and 477‑A of the P. P. C.
(b) That the interpolating on the above dates, some leaves in the general register, you fabricated false evidence and committed an offence punishable under section 193 of the P. P. C.
(c) That by fabricating the parents‑age‑certificate embodying a false statement as to the date of the birth of Ahmed Sultan and by making false entries in the general register intending that such false statements and false entries may appear in evidence before the Revising Authority and by so appearing in evidence may cause the Revising Authority to entertain an erroneous opinion touching the material point of age to the result of the proceedings, com mitted an offence of fabricating false evidence punishable under section 193 of the P. P. C.
"And further you Abdul Ghafoor in pursuance of the said conspiracy, on the above dates and at the above place, abetted the aforesaid Dhani Bakhsh accused in the com mission of the offences of destruction of part of school general register to prevent its production as evidence, falsification of the general register and fabrication of false evidence, which offences were actually committed in conse quence of your abetment and thereby committed offences under section 109 read with sections 193, 204 and 477‑A of the P. P. C.
And further you, Dr. Muhammad Mustafa, Arain, in pursuance of the aforesaid conspiracy at the aforesaid place and on the aforesaid dates, fabricated a false certificate. relating to the age of accused Ahmad Sultan and by subscribing to the aforesaid false certificate made a false statement in a declaration and issued and signed the said false certificate intending that the declaration and certificate may appear in evidence before the Revising Authority (First Class Sub‑Judge) knowing and believing that the said certificate was false in a material point and was by law receivable in evidence and so appearing may cause the Revising Authority to entertain an erroneous opinion touching the material point of age to the result of the proceedings and thereby committed offences punishable under sections 193, 197 and 199 of the P. P. C.;
And within the cognizance of this Court;
And I hereby direct that you be tried by this Court on the said charges."
Coming to the question whether the present case is covered by section 195, Cr. P. C., on the ground that the Revising Authority, who was First Class Sub‑Judge, Larkana, in hearing the application of Ahmad Sultan and entering his name in the electoral roll, acted judicially, it might be stated here that under the Sind Legislative Assembly Electoral (Preparation, Revision and Publication of Electoral Rolls) Rules 1936, the First Class Sub‑Judge, Larkana, was appointed as Revising Authority. The provision is contained in rule 22 of the above rules, which reads as under :‑
"22. (1) Claims and objections relating to any electoral roll for any part of the area specified in the first column of the annexed table shall be received by the authority specified against such area in the second column of the said table.
| The City of Karachi, the Cantonments of Karachi and Manora, the limits of the Karachi Port Trust and the taiuka of Karachi. | The Chief Judge of the Court of Small Causes, Karachi. |
| Any other area. | The Sub‑Judge within the local limits of whose ordinary jurisdiction the area is situate. |
(2) The judge, on receipt of a claim or objection lodged in the manner herein prescribed and by a person entitled to lodge, such claim or objection, shall fix a date and place for hearing the same and shall give notice of such date and place to the claimant or objector ; the Collector who prepared the electoral roll shall be made a party to such claim or objection if not already a party thereto, and shall be supplied with a copy of the claim or objection and with notes of the date and place fixed for hearing. Where objec tion is taken to the entry of any person on the register, a copy of the objection with notice of the date and place fixed for hearing shall be sent to such person. A copy of the claim or objection with notice of the date and place fixed for hearing shall be placed on the judge's notice board.
(3) Where any copy or notice is to be sent under sub rule (2), such copy or notice shall be sent by post to a claimant or objector to the address given in the claim or objection, and to a person to the entry of whose name objection is taken, to the address given in the electoral roll ; a copy of a notice so sent shall be deemed to have been duly served
Provided that where the judge is satisfied that it is not practicable to serve the notice individually on each claimant or objector, the judge may give a general notice by publica tion thereof in a leading newspaper or in such other manner as he deems fit and thereupon the claimants or objectors concerned shall be deemed to have been duly served with the notice.
(4) The parties shall produce before the Judge the evidence on which they rely.
(5) Where a claim or objection is based upon any right, title or interest in anything and such right, title or interest is disputed, if the judge is of opinion that the dispute cannot be determined summarily, but should be adjudicated upon by a Civil Court; he shall reject such claim or objection.
(6) The judge after hearing the evidence, if any, adduced on behalf of the parties and after such further enquiry as he may deem necessary shall pass order on 'the claim or objection.
(7) The judge shall forthwith send a copy of his order to the Collector.
(8). If the Judge is unable to dispose of the claims and objections made under the: preceding sub‑rules within the period of four weeks from the last date fixed for lodging claims and objections he may transfer any claim or objec tion for hearing to any other Judge or the Registrar of the Court of Small Causes, Karachi, in the case of the City of Karachi, and in the case of any other area to a joint or extra-joint subordinate judge, having jurisdiction within the local limits of the jurisdiction of the Judge making such transfer; br may appoint such number of practising advocates, vakils or pleaders as he shall consider necessary for disposing, of the said claims and objections within the said period. The provision of this rule applicable to a judge Craving jurisdiction under the provisions of sub‑rule (1) 'shall apply to a judge to whom a claim or objection has been transfer red for hearing and to an advocate, vakil or pleader appoin ted as aforesaid."
From the above it will be seen that there is no provision in this rule authorising the Revising Authority to summon witnesses. Clause (4) of this rule says that the parties shall produce before the judge the evidence on which they rely. Clause (5) very definitely says "if the dispute is of such a nature that it cannot in the opinion of the Revising Authority be determined summarily but should be adjudicated upon by‑a Civil Court, he shall reject such claim or objection:" From this it becomes further clear that the Revising Authority was not being treated as a Civil Court. Clause (8) authorises the Revising Authority to transfer these applications to a joint or extra joint subordinate judge or to "appoint such number of practising advocates, vakils or pleaders as he shall consider necessary."
Mr. Dharamdas, who has appeared for the applicants has relied on the cases reported in I L R 39 Bom. 310, A I R 1935 Mad. 673, A I R 1940 Sind 100, and P L D 1951 Sind 35. On the other hand Mr. Tufail Ali, the learned Assistant to the Advocate‑General has relied on a number of cases, out of which the following may be mentioned : A I R 1953 H P 117, I L R 1939 Kar. 121, A I R 1926 Rang.,25, A I R 1927 All. 139, and A I R 1943 Cal. 574. I have gone through all these reported cases very carefully and am of the opinion that the present case does not fall under the provisions of section 195 Cr. P. C. As pointed out above, the rules under which the First Class Sub‑Judge, Larkana, acted in this matter definitely provide in clause (5), that he was not doing it as a Civil Court. On the contrary it says that if the nature of the application made to him is such that it cannot be determined summarily and should be adjudicated upon by a Civil Court, he shall reject such claim or objection. This clearly shows that in his capacity as a Revising Authority lie was not acting as a Civil Court. The provisions made under rule 22, referred to above, clearly show that the First Class Sub‑Judge, Larkana, f in deciding this matter was acting as a persona designata, and not as a Court. I am therefore of the opinion that the provisions of section 195 Cr. P. C., do not apply to then, present case.
The only other objection raised is that the order passed by the Revising Authority cannot be questioned in any Court or otherwise. Reliance for this is placed on rule 24 of the Sind Legislative Assembly Electoral (Preparation, Revision and Publication of Electoral Rolls) Rules, 1936 ; it reads as under :
"The order passed by the Revising Authority under rule 22 or 23 'shall, except as provided by rule 23; be final and shall not be questioned in any Court or otherwise."
Mr. Dharamdas, the learned advocate for the applicants however, appears to be under a misapprehension. What rule 24 says is that the order of the Revising Authority with respect to the name of a voter being entered in the voters list or 'not is not to be questioned. The restriction is confined to that only ; it does not extend further to the prosecution of anybody for having committed any criminal offence during the course of an enquiry before the Revising. Authority. In this complaint, the order of the Revising Authority directing the name of the applicant Ahmed Sultan to be entered in the voters list is not questioned, it is not said that the name should be struck out. The provisions of rule 24 will therefore not apply to the present proceedings against the applicants.
I would, therefore, reject the application, and further direct that this matter is very old and may be disposed of by the trial Court as early as possible,
‑(26th May 1954)‑The question which falls for determination is whether a Subordinate judge, who under the ,Sind Legislative Assembly Electoral (Preparation, Revision and Publication of Electoral Rolls) Rules 1936, (hereinafter called the Rules) is the Revising Authority of an electoral roll, is a Court‑within the meaning of clauses (b) and (c) of sub section (1) and of subsection (2) of section X95 Cr. P. C.
The term "Court" is not defined in the Cr. P. C. or in the Central General Clauses Act, 1897. Section 3 of the Evidence Act defines it as follows for the purposes of that Act.
" ..Count' includes all judges and Magistrates., and all persons, except arbitrators, legally authorized to take evidence."
Sections 19 and 20 of the P. P. C. defines the word " Judge" and the words "Court of Justice" as follows:‑.
"Section 19.--‑The word 'Judge' denotes not only every person who is officially designated as a judge, but also every' person,‑
who is empowered by law to give in any legal proceed ings, civil or criminal, a definitive judgment, or a judgment which, if not appealed against, would be definitive, or a judgment which, if confirmed by some other authority, would be definitive, or
who is one of a body of persons, which body of persons is empowered by law to give such a judgment.
"Section 20.‑--The words 'Court of Justice " denote a Judge who is empowered by law to act judicially alone, or a body of judges which is empowered by law to act judicially as a body, when such judge or body of judges is acting judicially:"
Under section 4 (2) Cr. P. C. these expressions are to be deemed to have the same meaning for the purposes of the Cr. P. C.
In Cooper v. Wilson (L R (1937) 2 K B 309,340); Scott, L. J., cited with approval the following passage from the report of the Ministers" Powers Committee (Command Paper 4060 of 1932), p. 73, which is an attempt to define the words "judicial " and "quasi judicial ":-
"A true judicial decision pre‑supposes an existing dispute between 2 or more parties, and then involves four requis ites :‑(1) The presentation (not necessarily orally) of their case by the parties to the dispute : (2) if the dispute between them is a question of fact, the ascertainment of the fact by means of evidence adduced by ‑the parties to the dispute and often With the assistance of argument by or on behalf of the parties on the evidence : (3) if the dispute between them is a question of law, the submission of legal argument by the parties: and (4) a decision which disposes of the whole matter by a finding upon the facts in .dispute and an application of the law of the land to the facts so found, including where required a ruling upon any disputed question of law. A quasi‑judicial decision equally pre‑supposes an existing dispute between two or more parties and involves (1) and (2) but does not necessarily involve (3) and never involves (4). The, place of (4) is in fact taken by admini strative action, the character of which is determined by the Minister's free choice."
These characteristics of a true judicial decision were used as tests of a judicial tribunal in Bharat Bank Ltd., Delhi v. The Employees of the Bharat Bank Ltd., Delhi (A I R 1950 S C 188, 207) and in Maqbool Hussain v. The State of Bombay (A Z R 1953 S C 325, 329).
What "judicial power" is, was considered by the Privy Council in Shell Company of Australia v. Federal Commissioner of Taxation ((1931) 144 L T 421,427; L R 1931 A C 275):
"What is 'judicial power' Their Lordships are of opinion that one of the best definitions is that given by Griffith, C. J., in Huddart Parker and Co., Proprietary, Limited, v. Moorehead ((1908) 8 C L R 330 at p: 357) where he says : "I am of opinion that the words judicial power' as used in section 71 of the Consti tution mean the power which every sovereign authority must of necessity have to decide controversies between its subjects, or between itself and its subjects, whether the rights relate to life, liberty or property. The exercise of this power does not begin until some tribunal which has power to give a binding and authoritative decision (whether subject to appeal or not) is called upon to take action."
The Privy Council was there considering whether the Board of Review under the Australian Income‑Tax Assessment Act 1922‑25 was in truth a Court. After observing that the authorities clearly "show that there are tribunals with many of the trappings of a Court which nevertheless are not Courts in the strict sense of the exercise of judicial powers," the Privy Council mentioned the following negative propositions in relation thereto :‑
"In that connection it may be useful to enumerate some negative propositions on this subject : (1) A tribunal is not necessarily a Court in this strict sense because it gives a final decision. (2) Nor because it hears witnesses on oath. (3) Nor because two or more contending parties appear before it between whom it has to decide. (4) Nor because it gives decisions which affect the rights of subjects. (5) Nor because there is an appeal to a Court. (6) 'Nor because it is a body to which a matter is referred by another body."
And again, a little later, the Privy Council observed that "an administrative tribunal may act judicially, but still remain an administrative tribunal as distinguished from a Court, strictly so‑called."
In The Labour Relations Board of Saskatchewan v. John East Iron Works Ltd. (A.I R1949 P C129), the Privy Council while considering whether the Appellant‑Board (the greater part of whose func tions were beyond doubt in the administrative sphere) was exercising judicial power while making an order under sec tion 5 (e) of the Trade Union Act 1944 of the province of Saskatchewan, observed as follows :‑
"Without attempting to give a comprehensive definition of judicial power, they accept the view that its broad features are accurately stated in that part of the judgment of Griffith, C. J. in Huddart Parker and Co. Proprietary Ltd. v. Moorehead ((1909) 8 C L R 330 at p. 357.), which was approved by this Board in Shell Company of Australia Ltd. v. Federal Commissioner of Taxation (1931 A C 275 : (100 L J P C 55)). Nor do they doubt, as ‑was pointed out in the latter case, that there are many positive features which are essential to the existence of judicial power, yet by themselves are not conclusive of it, or that any combination of such features will fail to establish a judicial power if, as is a common characteristic of so‑called administrative tribunals, the ultimate decision‑may be determined not merely by the application of legal principles to ascertained, facts but by considerations of policy also."
And a little later, as to parties, the Privy Council observed:---
"It is a truism that the conception of the judicial function is inseparably bound up with the idea of a suit between parties whether between Crown and subject or between subject and subject, and that it is the duty of the Court to decide the issue between those parties, with whom alone it rests to initiate or defend or compromise the proceedings."
These are the principles in the light of which the question whether a Subordinate judge acting as a Revising Authority under the Rules, is a Court needs to be considered. Chapter I. of the Rules is headed "Territorial Constituencies", and has two parts : Part I containing rules 5 to 9, headed "Preparation of Electoral Rolls", and Part II containing rules 20 to 29 headed "Publication of Electoral Rolls."
Under rule 6, the Collector .is required to have an electoral ro11 for each. of the‑ territorial constituencies or part thereof to be prepared and to have it submitted to the return ing officer. Rule 20 enjoins the publication of every electoral roll at the head‑quarters office of the returning officer.
Rules 21 and 22 which make provisions for claims and objections to be made and their decision by the Rev1sing Authority, read as follows:‑
21 (1). Objections.‑--At the time of publishing the electoral roll and the parts thereof, a notice shall be pub lished in like manner in the form in Schedule H calling upon such persons entered in the electoral roll to lodge in the manner herein specified any objection they may have to make to the electoral roll as published, and upon persons claiming to be entered in the electoral roll, to lodge their claims in the manner herein specified. A claim or objection maybe lodged in the specified manner on behalf of the Collector in respect of any entry or omission in the electo ral roll.
(2) such claim or objection shall be made in writing and shall specify the constituency in question, the grounds on which the right of any person to be entered in the electoral roll is asserted or denied, the evidence which the claimant or objector intends to lead, the ad‑dregs of the claimant or objector, his number if any in the electoral roll and the area in the electoral roll for which he is entered, and in the case of an objection, the number in the electoral roll of the person to whose entry objection is taken and the area on the electoral roll for which he is entered.
(3) Four copies of the claim or objection shall be delivered or sent by post so as to reach the office of the judge autho rised to receive the claim or objection under these rules oil or before the tenth day from the publication of the electoral roll, excluding the day of such publication.
(4) A claim or objection, which is not lodged in the manner herein prescribed or which is lodged by a person not entitled to lodge the same, shall be rejected.
22 (1). Revising Authority Powers and Procedure.‑Claims and objections relating to any electoral roll for any part of the area specified in the first column of the annexed table shall be received by the authority specified against such area in the second column. of the said table.
| The City of Karachi, the Cantonments of Karachi and Manora, the limits of the Karachi Port Trust and the taluka of Karachi. | The Chief Judge of the Court of Small Causes, Karachi. |
| Any other area ... | The Subordinate judge within the local limits of whose ordinary jurisdic tion the area is situate. |
(2) The Judge, on receipt of a claim or objection lodged in the manner herein prescribed and by a person entitled to lodge such claim or objection; shall fix a date and place for hearing the same and shall give notice of such date and place to the claimant or objector, the Collector who prepared the electoral roll shall be made a party to such claim or objec tion, if not already a party thereto, and shall be supplied with a copy of the claim or objection and with notice of the date and place fixed for hearing. Where objection is taken to the entity of any person on the register, a copy of the objection with notice of the date and place fixed for hearing shall be sent to such person. A copy of the claim or‑ objec tion with notice of the date anal place fixed for hearing shall be placed on the judge's notice board.
(3) Where any copy or notice is to be sent under sub rule (2) such copy of notice shall be sent by post to a clai mant or objector to the address given in the claim or objection, and to a person to the entry of whose name objection is taken, to the address given in the electoral roll; a copy of a notice so sent shall be deemed to have been duly served.
Provided that where the judge is satisfied that it is not practicable to serve the notice individually on each clai mant or objector, the Judge may give a general notice by publication thereof in a leading newspaper or in such other manner as he deems fit and thereupon the claimants or objectors concerned shall be deemed to have been duly served with the notice.
(4) The parties shall produce before the Judge the evi dende on which they rely.
(5) Where a claim or objection is based upon .any right, title or interest in anything and such right, title or interest is disputed, if the Judge is of opinion that the dispute cannot be determined summarily but should be adjudicated upon by a Civil Court, he shall reject such claim or objection.
(6) The judge after hearing the evidence, if any, adduced on behalf of the parties and after such further inquiry as he may deem necessary shall pass order on the claim or objection.
(7) The judge shall forthwith send a copy of his order to the Collector.
(8) If the judge is unable to dispose of the claims and objections made under the preceding sub‑rules within the period of four weeks from the last date fixed for lodging claims and objections, he may transfer any claim or objection for hearing to any other judge or the Registrar of the Court of Small Causes, Karachi, in the case of the City of Karachi, and in the case of any other area to a joint or extra‑joint Subordinate Judge having jurisdiction within the local limits of the jurisdiction of the Judge making such transfer ; or may appoint such number of practising' advocates, vakils of .pleaders as he shall consider necessary for disposing of the said claims and objections within the said period. The pro visions of this rule applicable to a Judge having jurisdiction under the provisions of sub‑rule (1) shall apply to a Judge to whom a claim or objection has been transferred for hearing and to an advocate, vakil or pleader appointed as aforesaid."
Rule 23 enables a person who has not applied to the Registering Authority in the manner prescribed in rule 13 to make an application to the Revising Authority for enrolment, on or before the 10th day from the publication of the Electo ral Roll.
Rule 24 makes the Revising Authority's order final. It reads as follows :‑
Revising Authority's orders final‑"The orders passed by the Revising Authority under rule 22 or 23 shall, except as provided by rule 27; be final and shall not be questioned in any Court or otherwise."
Rule 27 provides for applications for amendment of Electoral Rolls which are required to be made to the Returning Authority and to be decided by the Revising Authority following as far as may be., the procedure prescribed in rule 22.
Rule 28 makes the Electoral Roll of any constituency as finally published conclusive evidence for the purpose of determining whether any parson is an elector in such constituency
Rule. 21 provides for claims and objections .to the Electoral Roll to be made in writing with four copies stating the ground on which the application is made, the evidence intended to be led and other matters, in order to lay before‑the Court; with copies for service on‑the Collector and the parties, the ques tions which fall for determination, and the evidence intended to be led thereon. These requirements are mandatory and a breach of them results in rejection of the claim or objection.
Sub‑rule (2) of rule 22 requires the Revising Authority to fix a date and place of hearing and give notice thereof to the claimant or objector and further requires the Revising Authority to make the Collector who prepared the Electral Roll, a party to the claim or objection, if he is not one already, and to supply him with a copy of the claim or objection, and to give him notice of the date and place of hearing. It also requires a copy of the claim or objection with notice of the date and place of hearing to be placed on the Judge's notice board.
Sub‑rule (3) provides for the manner in which the notice may be served.
There is thus before the Revising Authority a justiciable issue namely whether in the circumstances of the case a person has the right to have his name appear on the Electoral Roll which is under Rule 28 conclusive evidence that he is an elector. And this justiciable issue is to be decided in accordance with prescribed rules of procedure, between the claimant and the collector or the objector, the person objected to and the Collector on production by them of the evidence upon which they rely.
Under sub‑rule (6) the Revising Authority is to pass an order on the claim or objection after hearing the evidence, if any, adduced on behalf of the parties and after such further inquiry as he may deem necessary.
Under rule 24 the Revising Authority's decision is final and cannot be questioned in any Court or otherwise:
There is no indication in. these rules that considerations of executive or administrative policy enter into the making of the Revising Authority s decisions. Indeed the power and duty to be exercised in arriving at a decision upon the justici able issue appear entirely free from considerations of executive or administrative policy and that view is supported by the requirement that a judge shall be the Revising Authority. His decision is definitive in that it either affirms or denies finally, a person's right of vote. The function of the Revising Authority is therefore a judicial one notwithstanding that the decision is not open to appeal or revision and there is no express provision in the rules for summoning witnesses.
As to sub‑rule (5) of rule 22, it seems that tile right, title or interest in dispute relates to the various qualifications, residence, property, education or other which give the right of vote. Such a dispute may be determined by the Revising Authority summarily if he considers that possible. It is only when he is of the opinion that such a dispute cannot be determined summarily but should be adjudicated upon by a Civil Court, that he is required to reject the claim or objection based upon it. Such a summary determination or rejection does not detract from its being judicial.
Clauses (b) and (c) of subsection (1) and subsection (2) of section 195 read as follows:
"Section 195 (1). No Court shall take cognizance‑
(a) . . . .
(b) of any offence punishable under any of the foll6wing sections of the same Code, namely, sections 193, 194, 195, 196, 199,.200, 205, 206, 207, 208, 209, 210, 211 and 228, When such offence is alleged to have been committed in or, 'in relation to, any proceeding in any Court, except on the complaint in writing of such Court or of some other Court to which such Court is subordinate ;
(c) of any offence described in section 463 or punishable or under section 471, section 475 or section 476 of the same Code, when such an offence is alleged to have been committed by a party to any proceeding in any Court in respect of a document produced or given in evidence in such proceed ing, except on the complaint in writing of such Court, or of some other Court to which such Court is subordinate."
(2) In clauses (b) and (c) of subsection (1) the term Court' includes a Civil, Revenue or Criminal Court, but does not include a Registrar or Sub‑Registrar under the
Indian Registration Act, 1877."
In subsection (2) the word "includes" was substituted for the word "means" by the Code of Criminal, Procedure (Amendment) Act 1923. The effect of this amendment is to bring within the ambit of clauses (b) and (c) of subsection (1) of section 195 Cr. P. C., a judicial tribunal other than a Civil Revenue or Criminal Court.
In M. M. Khan v. The Crown (I L R 12 Lah. 391, 395), Harrison, J., referred to this amendment as meaning that: section, 195 (1) (b) and (c) contemplate Courts other than Civil, Revenue and Criminal Courts, and held that the special Commissioners, under Act 37, 1850, who held an inquiry regarding the conduct of a public servant, were a Court within the meaning of section 195 Cr. P. C.
In Haricharan Kandu v. Kayshi Charan Dey (A I R 1940 Cal. 186), it was held that the scope of section 195 Cr. P. C., as regards making of complaints is not restricted to the Courts detailed in section 476 Cr. P. C. which mentions only Civil, Revenue or Criminal Courts:
The Calcutta High Court has held the view that the term "Court" in section 195 Cr. P. C. is wider than the terms "Court of justice" defined in section 20 of the Penal Code, in Raghoobuno Sahoy v. Kokilsingh (I L R (1890) 17 Cal. 872), Nandalal Ganguli v. Khetra Mohan Ghose (I L R (1918) 45 Cal. 685), Bibhootibooshan Adikari v. Khemchand Khururia ((1934) L R 61 Cal. 792, 793), Haricharan v. Kaushi Charan (A I R 1940 Cal. 286, 287),
Bibhuti Bhusan Bannerjee v. Dwarkinath Bhattacharjee (A I R 1943 Cal. 574, 576).
The same view has been taken in Re: Narchand Shivchand (L R 1912 37 Bom. 367, 368).
In Y. Mahabaleswarappa v. M. Gopalaswami Mudaliar (A I R 1935 Mad. 673), Curgonven and Cornish, JJ., have taken another view, namely, that an Election Commissioner is a Civil Court for he decides civil rights and that the term "Civil Court" used in sections 195 and 476 Cr. P. C., is not restricted to Courts of ordinary civil jurisdiction.
These cases of the Indian High Courts are illustrative of the wide meaning given to the word "Court" in clauses (b) and (c) subsection (1) and subsection (2) of section 195 Cr. P. C. the case closest to the present one being that in A I R 1935 Mad. 673.
Bibhuti Busan Bannerji v. Dwarkanath Bhatacharjee (A I R 1943 Cal. 574) is no authority contra for it accepts the view expressed in A I R 1940 Cal. 286 and in the previous Calcutta cases cited above. The case was decided on the ground that the Chairman or Magistrate acting under the Bengal Municipal Act does not act judicially and proceedings before him are not judicial proceedings conducted according to well‑known principles of judicial procedure. Har Prasad v. Emperor (A I R 1947 All. 139) which holds that the Commissioner acting as an Election judge under section 24 (1) United Provinces Municipal Act II of 1916 is not a Court within the meaning of sections 195 arid 476 Cr. P. C. does not consider any prior case and is unhelpful.
Two considerations are crucial: firstly, the effect of the substitution of the word "includes" for the word "means" in subsection 2 of section 195 Cr. P. C. widens the meaning of the word "Court" in clauses (b) and (c) of subsection (1) of section 195 to include a judicial as distinguished from an administrative tribunal ; secondly, the object or policy of F clauses (b) and (c) of subsection (1) of section 195 Cr. P. C. which is to guard against vexatious, groundless or improper prosecutions for offences therein mentioned, is carried out more fully when applied not ‑ only to ordinary Civil, Criminal and Revenue Courts but also to other judicial tribunals. Their cumulative effect is decisive.
The fact that the subordinate judge is a persona designata while acting as the Revising Authority is immaterial, for the term "Court" has a wide meaning and includes a judicial tribunal, to constitute which a person is often designated by office or name. It is a material consideration is cases like Muhammadi Steampship Co., Ltd. v. Underwood Typewri ter Co. (P L D 1951 Sind 35) where the question arose whether the Chief Judge of the Karachi 'Small Causes Court while acting as the Revising Authority under the Sind Rent Restriction Act, is a Court subordinate to the High Court and subject to its revisional jurisdiction within the meaning of section 115, Code of Civil Procedure, 1908. Here, no question arises of Court being subordinate to the High Court and so subject to its revisional jurisdiction.
The conclusion I have arrived at is that the question which falls for determination in this case should be answered is the affirmative and that cognizance is barred for want of a complaint by the Court, viz., the Revising Authority under the rules. I would therefore quash the charges in respect of the sections mentioned in clauses (b) and (c) of subsection (1) of section 195 Cr. P. C. and conspiracy or attempt to commit them or abetment of them.
‑(22nd July, 1954).‑This is an application in revision, against ;an order of the learned Special judge, Sukkur, rejecting the application of the five applicants, praying that the proceedings against them be quashed. The applicants were charged under sections 109, 193, 197, 198, 199, 465, 471, 477‑A read with section 120B P. P. C., and other offences individually, arising out of an application made by applicant Ahmad Sultan for entering his name in the roll of voters. The First Class Sub‑Judge, Larkana, who was the Revising Authority, directed that the name of Ahmad Sultan be included in the Electoral Roll of Larkana Muhammadan West (Rural Constituency). The application was heard by my learned brothers Agha and Vellani, JJ. The question before them was whether a Subordinate Judge, the Revising Authority of an Electoral Roll under the Sind Legislative Assembly Electoral Rules, 1936, was a Court within the meaning of clauses (b) and (c) subsection (1) and of subsection (2) of section 195 Cr. P. C. Both concurred in holding that the Subordinate judge was persona designata while acting as the Revising Authority. Agha J. considered that he was not acting as a Court, and he was not authorised under the rules to summon witnesses while Vellani, J, considerd that the term Court' has a wide meaning and included a judicial tribunal to constitute which a person is often designated by office or name. Vellani, J., considered the definitions of the term "Court" in section 3, Evidence Act, the word "Judge" and the words "Court of Justice" in sections 19 and 20 P. P. C. the words "Judicial" and "quasi‑Judicial", "Judicial Power" in certain English and Indian authorities and observed
"These are the principles in the light of which the question whether a Subordinate judge acting as a Revising Authority under the rules, is a Court, needs to be considered."
After considering the rules he came to the conclusion:
"There is no indication in these rules that considerations of executive or administrative policy enter into the making of the Revising Authority's decisions. Indeed the power and duty to be exercised in arriving at a decision upon the justiciable issue appear entirely free from considerations of executive or administrative policy and that view is supported by the requirement that a judge shall be the Revising Authority: His decision is definitive in that it either affirms or denies, finally, a person's right of vote. The function of the Revising Authority is therefore a judicial one notwith standing that the decision is not open to appeal or revision and there is no express provision in the rules for summoning witnesses."
After considering various Indian authorities to be fund In commentaries for and against the view what is "Court" within the meaning of the word occurring in section 105 Cr. P. C. the case, closest to the present one, being Y. Mahabaleshwarappa v. N. Gopalswami Mudaliar (A I R 1953 Mad. 673), that an Election Commissioner was a Court, he observed:
"Two considerations are crucial ; firstly, the effect of the substitution of the word includes for the word means in subsection (2) of section 195 Cr. P. C. widens 'the meaning of the word ' Court ' in clauses (b) and (c) of subsection (1) of, section 195 to include a judicial as distinguished from an administrative tribunal ; and secondly, the object or policy of clauses (b) and .(c) of subsection (1) of section 195 Cr. P. C. which is to guard against vex atious, groundless or improper prosecution for offences therein mentioned, is carried out more fully when applied not only to ordinary Civil Criminal and Revenue Courts but also to other Judicial tribunals."
But the English and the Indian decisions in which the High Courts interfered relate to issue of prerogative writs. Most of the authorities and the reasoning of the judgment are based on Y. Mahabaleswarapa v. Gopalswami Mudaliar. The observations of their Lordships of the Privy Council in the case of Shell Company of Australia v. Federal Com missioner of Taxation ((1931) A C 275) quoted therein:
" The authorities clearly show that there are tribunals with many of the trappings of a Court which neverthe less are not Courts in the strict sense of the exercise of judicial powers . . . . Later on the Judicial Committee enumerated some negative propositions to show that even exercise of certain specific powers, ordinarily exercised by a Court, does not by itself constitute an exercise of judicial power. The propositions set are as follows :‑
" (1) A tribunal is not necessarily a Court in this strict sense because it gives a final decision,
(2) Nor because it hears witnesses on oath;
(3) Nor because two or more contending parties appear before it between whom it has to decide,
(4) Nor because it gives decisions which effect the rights of subjects,
(5) Nor because there is an appeal to a Court,
(6) Nor because it is a body to which a matter is referred by another body."
These observations were made in deciding the question whether a Board of Review set up under the Common wealth Income‑tax Legislation was a Court exercising judicial powers in the strict sense. Although a quasi judicial body is not bound to act in accordance with strict rules of judicial procedure but can act on principles of administrative policy or convenience there must be an express or implied duty imposed by statute to act judicially. There is no such statutory obligation on the Revising Authority under the Government of India (Provincial Legislative Assembly) Order 1936 of the Sind Legislative Assembly Electoral Rules, 1936, made under paragraph 26 of Part I of the above order. In the Madras case the question was whether a Subordinate judge as Election Commissioner under the Madras Local Boards Act Rules was a Court for the purpose of sections 476‑A and 195 Cr. P. C. Section 5 Indian Elections Offences and Inquiries Act 1920 provides:
"Commissioners appointed to hold an inquiry shall have the powers which are vested in a Court under the Code of Civil Procedure, 1908, when trying a suit in respect of the following matters
(a) discovery and inspection,
(b) enforcing the attendance of witnesses and requiring the deposit of their expenses,
(c) compelling the production of documents,
(d) examining witnesses on oath,
(e) granting adjournments,
(f) reception of evidence taken on affidavit, and
(g) issuing commissions for the examination of witnesses, and may summon and examine suo motu any person whose evidence appears to them to be material ; and shall be deemed to be a Civil Court within the meaning of sections 480 and 482 Cr. P. C."
The Division Bench made a full and careful exami nation of all the circumstances attending the performance by the Election Commissioner of his functions and came to the following conclusion
" To summarise the effect of these decisions, it would seem that we have to look, not to the source of a tribunal's authority, or to any peculiarity in the method adopted of creating it, (though it is undoubtedly a con sideration that it derives its powers mediately or immedi ately from the Crown) but to the general character of its powers and activities. If it has power to regulate rights by the delivery of definitive judgments, and to enforce its orders by legal sanctions, and if its procedure is judicial in character in such matters as the taking of evidence and the administration of the oath, then it is a Court'. Not only do the powers and procedure of an Election Commissioner respond to these tests, but there is no other test applicable to an undoubted Court which they fail to satisfy."
In Quinn v. Leathem ((1901) A C 495) Lord Halsbury lays down the following proposition at p. 506 :
"Every judgment must be read applicable to the particular facts proved, or assumed to be proved, since the gener ality of the expressions which may be found there are intended to be expositions of the whole law, but governed and qualified by the pertinent facts of the case, in which such expressions are to be found. The other is that a case is only an authority for what it actually decides,"
Each case has to be considered on the merits and circum stances of the particular case. In considering the questions whether the Subordinate judge acted as a Court it is important to consider not only the functions of the Revising authority but also the nature of the right which is entrusted to him. In exercise of the powers conferred on him by paragraph 20 of the Fifth Schedule to the Government of India Act read with paragraph 26 of Part I of Government of India (Provincial Legislative Assemblies) Order, 1936, the Governor promulgated what are called Sind Legislative Assembly Electoral Rules 1936 which describes amongst others the procedure for the preparation of electoral rolls and the disposal of objections and claims in connection therewith and several functionaries are entrusted with the duty of adjudicating on the rights of persons who claim the right to vote or the right to be elected as members. Their Lordships of the Privy Council in Lord Strickland. v. Ciuseppe Crime (A I R 1930 P C 227) held that the decisions on questions relating to membership of legislative bodies were not decisions of mere ordinary civil rights. The right of vote or to stand as candidate for the election is not a civil right but is a creation of statute and special law and must be subject to the limitations imposed by it. The Government of India (Provincial Legislative Assemblies) Order 1936 and the Sind Assembly Electoral Rules 1936 contain electoral law and do not deal within the ordinary legal rights of the citizens. Justice as ordinarily understood has reference to matters of civil or criminal disputes and not to election matters which are of a political nature. That electoral right in Pakistan is a creation of the statute and does not seem to admit of any doubt. The rule is fundamental both here and in England that where a right is created by a statute which also prescribes the manner in which that right may be affirmed, the party complaining of any infringement of such right can only seek such remedy as is provided by that structure.
The answer to the question whether the Subordinate judge acted as a Court must rest on a proper reference to the above Order and Rules and decisions on other matters not in pari materia and differently worded cannot D be of much assistance. All the High Courts have held that a Court should have authority to take evidence on oath. A Court cannot function properly unless it is armed with certain powers, such as the power to record evidence bearing on the matter which it is claimed upon to decide, the power to enforce the attendance of witnesses and the production of documents and material objections before it and the power to pronounce judgment and carry it into D effect between the persons and parties who bring a case before it, (see Bouvier's Law Dictionary). Thus a Court must not only be charged with judicial functions but also be invested with powers. Rule 22 of the Sind Legislative Assembly Rules 1936 upon which reliance was placed by the learned advocate for the applicants provides
"22. Revising Authority Powers and Procedure.--‑(1) Claims and objections relating to any electoral roll for any part of the area specified in the first column of the annexed table shall be received by the authority specified against such area in the second column of the said table.
Table
| The City of Karchi, the Cantonments of Karachi and Manora, the limits of the Karachi Port Trust and the taluka of Karachi. | The Chief judge of the Court of Small Causes, Karachi, |
| Any other area | The Subordinate judge within the local limits of whose ordinary jurisdic tion the area is situate. |
(2) The judge, on receipt of a claim or objections lodged in the manner herein prescribed and by a person entitled to lodge such claim or objection, shall fix a date and place for hearing the same and shall give notice of such date and place to the claimants or objector; the Collector who prepared the electoral roll shall be made a party to such claim or objection, if not already a party thereto, and shall be supplied with a copy of the claim or objection and with notice of the date and place fixed for hearing. Where objection is taken to the entry of any person on the register, a copy of the objection with notice of the date and place fixed for hearing shall be sent to such person. A copy of the claim or objection with notice of the date and place fixed for hearing shall be placed on the Judge's notice board.
(3) Where any copy of notice is to be sent under sub‑rule (2), such copy or notice shall be sent by post to a claimant or objector to the address given in the claim or objection, and to a person to the entry of whose name objection is taken, to the address given in the, electoral roll ; a copy of a notice so sent shall be deemed to have been duly served.
Provided that where the judge is satisfied that it is not practicable to serve the notice individually on each claimant or objector, the judge may give a general notice by publication thereof in a leading newspaper or in such other manner as he deemed fit and thereupon the claimants or objectors concerned shall be deemed to have been duly served with the notice.
(4) The parties shall produce before the Judge the evi dence on which they rely.
(5) Where a claim or objection is based upon any right, title or interest in anything and such right, title or interest is disputed, if the judge is of opinion that the dispute cannot be determined summarily, but should be adjudicated upon by a Civil Court, he shall reject such claim or objection.
(6) The judge after hearing the evidence, if any, adduced on behalf of the parties and after such further enquiry as he may deem necessary shall pass order on the claim or objection.
(7) The judge shall forthwith send a copy of his order to the Collector.
(8) If the judge is unable to dispose of the claims and objections made under the preceding sub‑rules within the period of four weeks : from the last date fixed for lodging claims and objections, he may transfer any claim or objection for hearing to any other judge or the Registrar of the Court of Small Causes, Karachi, in the case of the City of Karachi, and in the case of any other area to a joint or extra-joint subordinate judge having juris diction within the local limits of the jurisdiction of the judge making such transfer ; or may appoint such number of practising advocates vakils or pleaders as he shall consider necessary for disposing of the said claims and objections within the said period. The provisions of this rule applicable to a judge having jurisdiction under the provisions of sub‑rule (1) shall apply to a judge to whom a claim or objection has been transferred for hearing and to an advocate, vakil, or pleader appointed as aforesaid."
Examining the rule in the light of the above principles, these conditions are not found to be satisfied. I therefore reject the application and. agreeing with Agha, C. J. direct that this case should be brought to any early conclusion.
A. H. Application rejected.
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