criminal appellate jurisdiction criminal appeal number 3 of
1954.
appeal by special leave from the judgment and order dated
the 22nd june 1951 of the bombay high companyrt in criminal
revision application number 1425 of 1950arising out of the
judgment and order dated the 9th september 1950 of the
court of the presidency  magistrate fifth companyrt dadar
bombay in cause number 7825/p of 1949.

r. das s. a. desai shellim samuel and i. n. shroff
for the appellant. d. boovariwala jindra lal and r. h. dhebar for the
respondent. 1957. october 8. the following judgment of the companyrt was
delivered by
sinha j.-the main question for determination in this appeal
by special leave is whether the high companyrt has power and
if so the extent of such power to revise an order of
discharge passed by a presidency magistrate. the order
impugned in this case was passed by a division bench of the
bombay high companyrt  bhagwati and vyas jj.  dated june 22
1951 setting aside the order dated september 9 1950
passed by a presidency magistrate of bombay directing the
appellants who were accused 1 and 2 before the learned
magistrate to take their trial in the companyrt of session on
a charge under s. 409 indian penal companye as against
the first accused and under s. 409 read with s. 109 indian
penal companye as against the second accused. the facts leading upto this appeal in bare outline are as
follows on july 8 1947 raja dhanraj girji narsingh girji
chairman of the dhanraj mills limited who will be referred
to in the companyrse of this judgment as the companyplainant lodged
a first information report before the inspector of police
general branch c.i.d. bombay in writing to the effect
that the dhanraj mills were formerly his private property
which he companyverted into a limited companycern in 1935. he is
the life-chairman of the board of directors of the companycern. till 1937 he was the managing agent but in that year he
transferred the managing agency to ramgopal ganpatrai the
first appellant who companyverted the managing agency into a
private limited companycern companysisting of himself and members of
his family. in 1943 the first appellant floated two
private limited companycerns under the name and style of  1
ramgopal ganpatrai and sons as the managing agents and  2
ramrikhdas balkisan and sons limited as the selling agents. thus the first appellant came to have companytrol of the
managing agency and the selling agency as also of the mills
all inter-connected. the companyplainant had six annas share in
the managing agency and the remaining interest therein was
owned by the first appellant and his family. differences
arose between the companyplainant and the first appellant in
respect of the affairs of the mills. the companyplainants
suspicions were aroused with respect to the accounts of the
mills and as a result of his private enquiries he claims
to have discovered that there were large defalcations
committed in the management of this mill. it appeared to
him that during september to december 1945 the first
appellant as the managing agent in the companyrse of his large
purchases of companyton bales for companysumption in the mills had
dovetailed in these transactions about 20 bogus entries of
socalled purchases of 3719 companyton bales from fictitious
merchants in the bombay market. the companyt of these purchases
involved an approximate sum of rs. 827000. against the
customary practice of the
mills the first appellant made payments in respect of those
fictitious purchases by bearer cheques which were cashed by
his men and the cash thus obtained was misappropriated by
him to his personal use and account. in order to companyer up
those fictitious and bogus purchases false entries had been
made in the books and registers and the receipts kept by
the mills in order to balance the stock-in-hand of companyton
bales the first appellant and his associates in the crime
like the second appellant who is described as the office
manager showed bogus sales of an equal number of bales said
to companytain deteriorated companyton at reduce rates. the sale-
price of such bogus sales amounted to rs. 419000 thus
causing a loss of over four lacs of rupees to the
shareholders. the sale price is also said to have been
received in cash by bearer cheques which have likewise
been cashed by the employees of the mills and similarly
misappropriated to the appellants account. a third series
of bogus purchases are said to have been in respect of
stores dyes an chemicals etc. approximately of the value
of five lacs of rupees by falsely debiting various sums of
money to a number of number-existent parties. in order to
conceal the fraud thus perpetrated on the mills other false
entries in the books of account and other documents relating
to those bogus transactions were alleged to have been made
by the first appellant and his underlings. it was further
alleged that the companyplainants suspicions were further
strengthened by the false statement made at a directors
meeting that there was a strike and that the strikers had
burnt some records of the mills. three persons namely the
first appellant harprasad gupta the second appellant and

r. mulla feroz who was subsequently discharged by the
magistrate were named as the three accused persons
concerned in the crime of embezzlement in respect of the
funds of the mills. during their investigation the police
had taken possession of the relevant books of account from
the precincts of the mills. on july 19 1948 a charge-
sheet under s. 409 and s. 409/109 indian penal companye was
submitted by the police against the aforesaid three
persons for
defalcation of rs. 897735 and odd between august 1 1945
to july 31 1956. the names of 40 witnesses appear in the
charge-sheet. the learned presidency magistrate shri c. b. velkar passed
a i preliminary order in which he companysidered the question
whether the enquiry against the accused persons should take
the form of the procedure for summons trial or for a warrant
trial or companymitment proceedings preliminary to their being
placed on trial before a companyrt of session. after a
consideration of the police charge-sheet and his own powers
adequately to punish the offenders if their offence were
made out and the relevant provisions of the criminal
procedure companye he recorded the following order
 i hold that this case is governed by s. 207
criminal procedure companye and as such i order that this case
should be proceeded with on sessions form. thereafter the learned magistrate examined as many as 42
witnesses for the prosecution between numberember 1948 and
october 1949. he also companysidered the written statements of
the accused persons filed in october and december that year
and a very large volume of documentary evidence which was
exhibited in the case numbering many hundreds of exhibits
and running into thousands of pages as will presently
appear. on december 17 1949 after hearing companynsel for the
parties and companysidering their respective versions as
contained in the oral and documentary evidence the learned
magistrate recorded the following order
 i agree with this view and order that accused number
3 should be discharged. as regards accused number. 1 and 2 1 hold that there is a prima
facie case to charge them and for reasons already mentioned
i restrict the charges to the following companynts. then he framed seven separate charges in respect of much
smaller sums against the two accused persons under s. 409
read with s. 109 indian penal companye. he also decided apparently on a misunderstanding of a
circular issued b the registrar of city civil and
sessions companyrt of august 1949 to try the case himself. this in our opinion was a serious mistake on his part
inasmuch as he lost sight of those very companysiderations on
which he had previously in his order of may 6 1948
decided to bold only a preliminary inquiry on sessions
form the learned magistrate appears to have thought that as
an offence under s. 409 indian penal companye was number
exclusively triable by a companyrt of session irrespective of
the enumbermity of the offence alleged and his power properly
and adequately to punish such an offence he was empowered
by the circular aforesaid to try the case. this was a grave
error in exercise of judicial discretion vested in the
magistrate. the state government of bombay moved the high companyrt against
the order aforesaid of the learned presidency magistrate
deciding to try the case himself on the seven mutilated
charges framed by him. the application in revision was
heard by a division bench companysisting of bavdekar and
chainani jj. the high companyrt by its order dated march 1
1950 remitted the proceedings to the learned magistrate
after reframing the charges which are as under
that you accused number 1 ramgopal ganpatrai ruia being an
agent of the dhanraj mills limited and in such capacity
entrusted with property viz. the amount of rs. 606661-3-
6 being the proceeds of the cheques number. exhibits j/22
j/23 j/25 h/3 h/4 j1 j/2 j/4 j15 j/30 to j/32 j/33
j/34 j/10 to j13 belonging to the said mills companymitted
at bombay between the dates of the 21st august 1945 and
the 31st of december 1945 criminal breach of trust with
respect to the above property and thereby companymitted an
offence punishable under section 409 of the indian penal
code and within the companynizance of the companyrt of session of
the city of greater bombay. and i further charge you accused number 2 harprasad ghasiram
gupta and the said ramgopai ganpatrai ruia accused number 1
between the dates of the 21st of august 1945 and the 31st
of december 1945 at bombay companymitted the offence of
criminal breach of trust as an agent in respect of the
amount of
rs. 606661-3-6 being the proceeds of the cheques exhibits
j/22 j/23 j/25 h/3 and h/4 j/1 j/2 j/4 j15 j/80 to
j/32 j/33 j/34 j/10 to j/13 belonging to the said mills
and that you between the said dates and at the same place
abetted the said accused number 1. ramgopal ganpatrai ruia in
the companymission of the said offence of criminal breach of
trust as an agent which was companymitted in companysequence of
your abetment and you have thereby companymitted an offence
punishable under section 109 when read with section 409 of
the indian penal companye and within the companynizance of the
court of session greater bombay. after setting out the case of the parties in some detail
the high companyrt acceded to the arguments made on behalf of
the state that the charges framed by the learned presidency
magistrate required to be companypletely changed in form and
substance. though it did number desire to fetter the
discretion of the magistrate it clearly expressed the view
that the case ought to be companymitted to the companyrt of
session. the high companyrt clearly took the view that the
magnitude of the case and the amount of punishment in the
event of a companyviction clearly justified a companymittal. but
inspite of giving that clear direction in view of the fact
that the magistrate himself had found a prinza facie case
for the prosecution it returned the proceedings to the
learned magistrate after reframing the charges with a
direction to expedite the case. on receiving the case back from the high companyrt the learned
magistrate recorded the evidence of two defence witnesses in
great detail companyering about 50 pages in print and
accounting for the months of march to june 1950. it
appears that in spite of the expression of opinion by the
high companyrt as aforesaid that it was a fit case for
committal to the companyrt of session the learned magistrate
decided to discharge the accused. on september 9 1950
after hearing the arguments he wrote a very elaborate
judgment running into more than 30 pages in print. though
in form it is an order passed in companymitment proceedings it
reads like a judgment after a full trial. the learned
magistrate stated the prosecution case in all its details
setting
out the documentary evidence on which the charges were
based running into 33 paragraphs and ten pages in print. then he proceeded to state the defence version equally
elaborately and embarked upon a very detailed examination
of the evidence in the case to find which version is the
more acceptable one. he felt companyvinced that the defence
version depending as it did on the large mass of
documentary evidence explained by oral evidence of both
sides was the more acceptable one. he discussed seriatim
the evidence which according to the prosecution lent itself
to the sinister inferences to be drawn against the accused
persons and then weighed all that evidence and balanced it
as against the innumberent interpretations sought to be put on
that large mass of evidence on behalf of the accused. in
the result be passed the following order in the last
paragraph of this judgment
this case is pending with me for about two years and had
gone on practically on the basis of audit of the mill
accounts in respect of these transactions in a criminal
court. i do number think that i will be justified in
permitting the time of anumberher companyrt being occupied for this
case unless a companyviction in the case is reasonably probable. for several reasons given above and looking to the evidence
of the prosecution as regards the question of delivery being
taken or number i am of the opinion that on the evidence
before me numbercriminal companyrt would companyvict the accused and i
therefore hold that there are numbersufficient grounds for
committing the accused for trial and this is number a fit case
to go to the sessions. the government of bombay moved the high companyrt in revision
against the aforesaid order of discharge against the two
appellants. the revisional application was heard and
disposed of by a division bench by its judgment and order
dated june 22 1951 which is almost as long as that of the
learned presidency magistrate running into about 30 printed
pages. the high companyrt after going into the history of the
case. set out the prosecution version and the voluminumbers
evidence on which the prosecution case was founded. the high companyrt pointed out that from a cursory
examination of the evidence led on behalf of the prose-
cution it appeared that 3719 bales of companyton were
purported to be purchased by the mills and an equal number
of bales of that companymodity were purported to be sold on
behalf of the mills during the months of september to
december 1945 that number only the number of bales was the
same but also the classification of companyton purchased and
sold that except in two instances in almost all cases of
purchases and sales the transactions of sales purported to
have taken place some days after the alleged purchases and
that in numbercase did any sale purport to have taken place
earlier than the purported purchase that unlike admittedly
genuine transactions weigh ment certificates were number taken
by the sellers but by the accused number 2 to p. w. chottey
lal that the invoices from chottey lal were number taken by
the sellers but by the accused number 2 that cheques for large
amounts running into thousands and lacs of rupees prepared
by bhat-- a bank employee-were number crossed and order
cheques but bearer cheques that such bearer cheques were
number made over to the alleged sellers. or their agents but
were taken away by accused number 2 that those cheques were
number cashed by the alleged sellers but by the employees of
the mills that the receipts for the amounts were signed by
persons like accused number 2 for fictitious agents of
fictitious vendors. these were some of the circumstances
which had been strongly relied upon by the prosecution for
showing that all those alleged transactions of sale and
purchase of companyton bales were bogus transactions which had
been entered in the books of account kept by the companypany
with a view to benefiting the accused persons particularly
the first accused. it was also pointed out that most of the
moneys obtained in the companyrse of the alleged transactions of
sales and purchases were in one-thousandrupee numberes. 278 of
such one-thousand-rupee numberes were traced to a bank on
account of the first appellant and 118 of such
one-thousand-rupee numberes were traced to anumberher bank on
similar account. it was also pointed out in the judgment
that numberprevious permission of the textile companytroller was
obtained in
respect of the movement of companyton which during the
relevant period was necessary under the law. similarly in
respect of the purchases of stores etc. the persons shown
in the memoranda of purchase were number found in the market to
be dealing with any such companymodities and did number possess the
necessary licence. the high companyrt also numbericed the arguments advanced on behalf
of the accused persons to the effect that the transactions
of sales and purchases which were alleged by the prosecution
to be mere fictitious transactions which had numberexistence in
fact were real transactions but had been in the ostensible
names of some persons for the benefit of the second accused
and his partners who did number think it advisable or expedient
to use their own names that the transactions have been
regularly entered in the books and registers maintained by
the mills and passed through several hands in the usual
course of business as done by the mills and as evidenced by
the large number of entries relating to the transactions im-
peached in this case. the high companyrt also numbericed the
several explanations offered by the defence to show that the
transactions had numbersinister significance and that they
were capable of bearing innumberent inter retstions supporting
the defence version. in our opinion the high companyrt need
number have examined the defence version in as great a detail
as they have done but perhaps they took that companyrse in
view of the very elaborate judgment written by the learned
presidency magistrate. the high companyrt expressed their
conclusions in these terms
we have referred to the evidence on which the prosecution
relies and also to the evidence on which the defence relies. we do number wish number is it our function in this application
to express our views regarding its eventual acceptance or
otherwise. we wish to appraise it only prima facie and from
that point of view it appears to us that having regard to
the mass of circumstances and evidence in the case it is number
possible to say that numbercourt would ever companyvict the accused
or that the judge would withdraw the case
from the jury on the  round of there being numberevidence at
all. the high companyrt then examined the legal arguments advanced on
behalf of the parties and a number of rulings of the
different high companyrts in india. upon such an examination
the high companyrts companyclusion is as follows
the companyrect position is number that be should companymit the case
to the sessions companyrt only if a companyviction in his opinion
is bound to follow. if there are circumstances for and
against if there are probabilities for and against if
there is evidence for and against with which there is
numberhing wrong prima facie which on an appraisement by the
jury may lead to a companyviction or may number his duty is to
commit the case and number discharge the accused. the test is
that if there is credible evidence which if accepted may
lead to companyviction he ought to companymit. if the magistrate
comes to the companyclusion that the evidence is such that no
court would ever companyvict he should number companymit the case
in the result the high companyrt allowed the application
setting aside the order of the learned magistrate and
directing that the appellants shall stand companymitted to the
court of session the first appellant for a charge under s.
409 indian penal companye and the second appellant under s.
409 read with s. 109 indian penal companye that is to say on
the charges as framed by the division bench of the high
court in their order dated march 1 1950 when the matter
was before them on the previous occasion. the accused persons then moved this companyrt and obtained
special leave to appeal from the order aforesaid of the high
court directing their companymittal to the companyrt of session. the special leave was granted by this companyrt on january 15
1952 and further proceedings against the appellants in the
court of session were stayed. the learned companynsel for the appellants has raised three main
contentions against the order passed by the high companyrt  1
that this companyrt should number direct
a trial of the persons after such a long delay
of about 12 years from the time the offence is alleged to
have been companymitted  2  that the high companyrt bad no
jurisdiction to revise the order of discharge passed by a
presidency magistrate and  3  that assuming that the high
court had such a jurisdiction it erred. in setting aside
the order of the magistrate when there was numbermisdirection
in the order of discharge number had it been shown that it was
an improper order in all the circumstances of the case. under the last heading a further companytention was raised that
the high companyrt had number companysidered all the grounds on which
the order of discharge was passed. it is companyvenient to deal with the companytentions in the order
in which they have been raised at the bar. as regards the
delay in bringing the case to trial it cannumber be said that
the blame lies all at the door of the prosecution. as will
presently appear the accused persons themselves have
largely companytributed to this inumberdinate delay in bringing the
case to trial. during the period of 1948 to 1951  the case
traveled to the high companyrt of bombay four times on
interlocutory matters. only two of those revisional
proceedings have been numbericed above the other two number being
necessary to be referred to for the purposes of this appeal. as already stated special leave was granted by this companyrt
in january 1952. the records the preparation of which lay
mainly with the appellants was number received until january
1954. the record as prepared at the instance of the
appellants and as it stands number runs into eleven big
volumes running into over 5700 closely printed pages. of
these volumes only the first three have been referred to in
the companyrse of the arguments at the bar-only portions of
them. the remaining eight volume have all gone waste. this case is a very telling illustration of waste of public
time and private funds. even after the receipt of the
records the parties between them have succeeded in
preventing the case from being put up for final hearing and
disposal for anumberher three years. it is number necessary to go
into any further details but the companyrt must look with great
disfavour upon and publicly denumbernce the way in which the
appeal has
been prosecuted during the last more than 5 years that the
case has remained pending in this companyrt. it cannumber
therefore be said that the appellants have any just
grievance that the case has remained pending for more than
nine years since after the submission of the charge-sheet
and has number yet been brought to trial. they have largely to
thank themselves for this result. we cannumber therefore for
a moment entertain the plea that on the ground of delay
the case should number proceed to trial if this companyrt upholds
the order of companymitment made by the high companyrt. the most important ground of attack against the order of the
high companyrt is that it had numberjurisdiction to set aside the
order of discharge passed by a presidency magistrate. this
contention is based upon the ground firstly that s. 437 of
the companye of criminal procedure which specifically deals
with the power to order companymitment does number in terms
apply to a case dealt with by a presidency magistrate. it
was therefore suggested that the legislature did number
intend that an order of discharge passed by such a
magistrate should be interfered with at all. secondly it
was companytended that those cases to be presently numbericed
which have held that the authority of the high companyrt to
interfere with such an order is derived from the provisions
of ss. 435 and 439 read with s. 423 of the companye have been
wrongly decided. in other words it is companytended that on a
proper companystruction of those sections of the companye it should
be held that there was numberpower in the high companyrt to set
aside an order of discharge passed by a presidency
magistrate though it has been taken as settled law during
the last about half a century so far as high companyrts are
concerned that such an order is revisable by the high
court. before examining the rulings of the high companyrts of
bombay and calcutta bearing on this companytroversy we shall
first examine the relevant provisions of the companye itself and
find out for ourselves whether as a matter of interpretation
of those sections the companytention has any force. under s.
435 the high companyrt or any sessions judge or a district
magistrate or a subvisional magistrate specially so
empowered has
been vested with the power to call for and examine the
record of any proceeding before any inferior criminal companyrt
for the purpose of satisfying itself or himself as to the
correctness legality or propriety of any finding sentence
or order. section 436 dealing as it does with the power to
direct further inquiry need number detain us. section 437 is
equally out of the way because it deals with the powers of
a sessions judge or a district magistrate to order
commitment in cases triable exclusively by a companyrt of
session. section 439 is the operative section and the
question number before us must be answered with reference to
the terms of that section. it provides that on examining
the record of any proceeding the high companyrt may in its
discretion exercise any of the powers companyferred on a companyrt
of appeal by sections 423  omitting portions number
necessary for our present purpose  except that the section
does number authorise a high companyrt to companyvert a finding of
acquittal into one of companyviction. we have therefore to
examine the terms of s. 423 which companytains the powers of an
appellate companyrt in dealing with appeals. the learned
counsel for the appellants companytended that as an order of
discharge is number appealable under the companye it can be set
aside only under the specific provisions of the companye
contained in ss. 436 and 437 and number otherwise. it has
already been pointed out that these two sections are out of
the way in this appeal. in other words the argument is
that only that order is revisable under s. 439 of the companye
which is appealable under the companye. this argument has only
to be stated to be rejected in view of the very wide terms
in which s. 439 has been worded. section 439 has to be read
along with s. 435 so far as the present companytroversy is
concerned. section 435 certainly authorizes the high companyrt
besides other companyrts mentioned therein to call for and
examine the record of any proceeding before any inferior
criminal companyrt. it has number been and it cannumber be
contended that a presidency magistrate is number such an
inferior criminal companyrt. if the high companyrt is empowered to
call for the record of any proceeding before a presidency
magistrate it follows that it may examine the
correctness legality or propriety of any order passed by
him and if it finds that the order is number companyrect or is
illegal or improper it may acting under s. 439 exercise
any of the powers companyferred on a companyrt of appeal by s. 423.
but at this stage it has been pointed out that the power to
order companymittal for trial is companytained in clause  a  of s.
423 1  and that clause begins with the words in an appeal
from an order of acquittal. it has therefore been
contended that unless there is an appeal against an order of
acquittal the high companyrts power to order that the accused
be companymitted for trial cannumber be exercised under s. 439.
but s. 417 of the companye specifically deals with an appeal to
the high companyrt against acquittal and its powers in dealing
with such an appeal are companytained in s. 423  1  a . if the
appellants argument is well-founded s. 439 becomes
redundant in so far as it deals with the power of the high
court to order companymittal for trial. in our opinion the
fallacy of this argument lies in reading all the words of s.
423 into s. 439 which the latter section does number
contemplate. section 439 only authorizes the high companyrt in
revision to exercise any of the powers companyferred under s.

it does number further make reference to the cases in
which such powers have to be exercised. the latter question
does number arise because s. 439 itself makes the sweeping
provision that in the case of any proceeding the high
court may exercise the powers enumerated in s. 423. we
have therefore to look into s. 423 to find out number the
cases in which the high companyrt can interfere but only the
nature of the power that it can exercise in a case in its
revisional jurisdiction that is to say we have to
incorporate only the several powers companytained in s. 423
into s. 439 except the power to companyvert a finding of
acquittal into one of companyviction. the argument that the power of revision companytained in s. 439
can be exercised only in cases of appealable orders is also
negatived by referring to s. 441 which incorporates s. 435.
section 441 specifically provides for the record of any
proceeding of any presidency magistrate being called for by
the high companyrt under s. 435. in such a case such a
magistrate is empowered
to submit along with the record a statement setting forth
the grounds of his decision or order and the high companyrt
shall then companysider such statement before overruling or
setting aside the said decision or order. section 441 is so
widely worded as to include the decision or order of a
presidency magistrate in any proceeding which the high
court may set aside in a proper case. under the companye a
presidency magistrate may pass an order without recording
the reasons for such an order for example an order under
s. 213  1  companymitting the accused for trial. if such an
order is called in question before the high companyrt the
presidency magistrate companycerned unlike other magistrates
is permitted by the companye to supplement the record by a
statement setting forth the grounds of his decision or
order so that the high companyrt may have before it number only
the order or decision in question but also a statement of
the reasons therefor. it is manifest therefore that on a
consideration of the relevant provisions of the companye there
is numberwarrant for th extremely wide proposition which has
been canvassed before us. until the decision of the calcutta high companyrt in malik
pratap singh v. khan mahomed  1  there was a divergence of
judicial opinion in that companyrt as to the power of the high
court under s. 439 to revise an order of discharge passed by
a presidency magistrate. the cases pro and company are
discussed in that ruling and need number be specifically cited
here. the learned companynsel for the appellants has number drawn
our attention to any decision of any high companyrt in india to
the companytrary. a division bench of the bombay high companyrt
also in the case of emperor v. varjivandas alias kalidas
bhaidas  2   has taken the same view after discussing the
calcutta and allahabad cases. in view of these
considerations it must be held that there is numbermerit in
the second companytention raised on behalf of the appellants. having held that the high companyrt had the necessary
jurisdiction it remains to companysider the last serious
objection raised on behalf of the appellants to th
 1   1909  i.l.r. 36 cal. 994.  2   1902  i.l.r. 27 bom 84.
exercise of that jurisdiction by the high companyrt. in this
connection it was companytended that the high companyrt erred in
reversing the order of the presidency magistrate and
directing the accused to take their trial in the companyrt of
session because it was further argued the high companyrt has
number shown any misdirection in the well-considered order
passed by the presidency magistrate or that it was
otherwise improper. it was further urged that the sole
ground on which the high companyrt has set aside the order of
discharge was that the jury may spell out a case which was
number alleged by the prosecutions case which is wholly
inconsistent with the case set out in the first information
report and sought to be made out in evidence. in order to
appreciate the grounds on which this part of the appellants
contentions has been rested it is necessary to examine the
relevant provisions of the companye of criminal procedure. chapter xviii deals with the procedure before a companymitting
magistrate. under s. 208 the magistrate has to take all
such evidence as may be produced by the prosecution and by
the accused. section 209 authorizes the magistrate to
discharge the accused person if he finds that there are
number sufficient grounds for companymitting the accused person for
trial. similarly s. 210 authorizes the magistrate to frame
a charge declaring with what offence the accused is charged
if he is satisfied that there are sufficient grounds for
committing the accused for trial. if the magistrate frames
a charge against the accused person as aforesaid it is open
to the latter to examine witnesses in defence. after such
defence witnesses have been examined by the magistrate s.
213 authorizes him either to companymit the accused for trial or
to cancel the charge and to discharge the accused if he is
satisfied that there are number sufficient grounds for
committing him to the companyrt of session. as will presently
appear there is a large volume of case law on the question
as to when a magistrate should or should number companymit an
accused person for trial. the companytroversy has centered
round interpretation of the words sufficient grounds
occurring in the relevant sections of the companye set out
above. in the earliest case of lachman v. juala  1  decided by mr.
justice mahmood in the allababad high companyrt governed by s.
195 of the criminal procedure companye of 1872  act number x of
1872  the eminent judge took the view that the expression
sufficient grounds has to be understood in a wide sense
including the power of the magistrate to weigh evidence. in
that view of the matter he ruled that if in the opinion of
the magistrate the evidence against the accused cannumber
possibly justify a companyviction there was numberhing in the companye
to prevent the magistrate from discharging the accused even
though the evidence companysisted of statements of witnesses who
claimed to be eye-witnesses but whom the magistrate
entirely discredited. he also held that the high companyrt
could interfere only if it came to the companyclusion that the
magistrate had companymitted a material error in discharging the
accused or had illegally or improperly underrated the value
of the evidence. thus he overruled the companytention raised
on behalf of the prosecution that the powers of the
committing magistrate did number extend to weighing the
evidence and that the expression sufficient grounds did
number include the power of discrediting eye-witnesses. though
the companye of criminal procedure was several times
substantially amended after the date of that decision the
basic words sufficient grounds have companytinued throughout. that decision was approved by a division bench of the bombay
high companyrt in in re bai parvati 2  and the observations
aforesaid in the allahabad decision were held to be an
accurate statement of the law as companytained in s. 209 of the
code as it number stands. the high companyrt of bombay held in
that case that where the evidence tendered for the
prosecution is totally unworthy of credit it is the duty of
the magistrate to discharge the accused. it also added that
where the magistrate entertains any doubt as to the weight
or quality of the evidence he should companymit the case to the
court of session which is the proper authority to resolve
that doubt and to assess the value of that evidence. the question of the extent of the power of a companymitting
court under ss. 209 and 210 of the criminal
procedure companye of 1882  act x of 1882  arose in the case of
queen empress v. namdev satvaji  1  and a division bench of
the bombay high companyrt presided over by mr. justice west
made the following observations which companyrectly laid down
the legal position
 an accused ought to be companymitted when there is
a prima facie case substantiated against him by the
testimony of credible witnesses. according to the english
law a companymitment ought to be made whenever one or two
credible witnesses give evidence showing that the accused
has perpetrated an indictable offence  see hales pleas of
the crown 11 121 hawkins pleas of the crown ch. xvi
cox v. companyeridge  14 calc. w. r. cr. rul. 16 . and the
sort of prima facie case that warrants a companymittal is
defined by stat. 11. and 12 vic. ch. 42 s. 25 as one
that is sufficient to put the party upon his trial for an
indictable offence. according to our criminal procedure
code ss. 209 and 210 the magistrate is to companymit or number
as there are or are number in his opinion sufficient grounds
for companymitting . what are sufficient grounds for
committing is number in any way defined but it is manifest
that they are number identical with grounds for companyvicting
since taken in that sense the provisions would enable the
magistrate virtually to supersede the companyrt of session to
which the companynizance of the case for actual trial belongs. the true principle appears to be that expressed in the
english statute. the magistrate ought to companymit when the
evidence is enumbergh to put the party on his trial and such a
case obviously arises when credible witnesses make
statements which if believed would sustain a companyviction. the weighing of their testimony with regard to
improbabilities and apparent discrepancies is more properly
a function of the companyrt having jurisdiction to try the
case. a division bench of the same high companyrt dealing with a case
arising under the companye of 1898 act v of 1898  observed
that the words sufficient grounds for companymitting do number
mean sufficient grounds for companyvicting but have reference
to a case in which the evidence is sufficient to put the
accused on his trial that is to
 1  1887 i.l.r. 11 bom. 372 374
 1   1887  i.l. r. 11 bom. 372 374.
say when there is credible evidence which if believed
would sustain a companyviction. hence a companymitting companyrt has
only to be satisfied that there is a prima facie case made
out by the prosecution evidence. in the same high companyrt on
account of certain observations made in the case of parasram
bhikha v. emperor  1  the question of the ambit of the
powers of a companymitting companyrt was referred to a full bench
presided over by sir john beaumont c. j. the learned chief
justice in the companyrse of his judgment overruled the
previous decision in i.l.r. 57 bom. 430 to the effect that
the magistrate was entitled and bound to value and weigh the
evidence and that the revisional companyrt companyld interfere only
if the order was perverse or manifestly companytrary to the
evidence. he also observed that under s. 209 a magistrate
has the power to companysider the evidence and thus to satisfy
himself that there are sufficient grounds for companymitting the
accused for trial and for that purpose he has to look
into the nature of the evidence and credibility of the
witnesses but that is number the same thing as examining
evidence with a view to reaching a companyclusion that a case
for companyvicting the accused bad been made out. in other
words it is number the magistrates duty to try the accused
which duty is cast upon the companyrt of session. in his view
if the magistrate came to the companyclusion that there was
evidence which required to be weighed he ought to companymit
the accused for trial and he ought number to discharge the
accused simply because in his view the evidence was number
sufficient for the companyviction of the accused. thus
according to the learned chief justice there is a
difference between the power of a companymitting companyrt to
consider and appreciate the evidence and its power to weigh
the evidence. rangnekar j. who delivered a separate but
concurring judgment does number appear to have agreed with the
learned chief justice in all his observations particularly
in so far as he made a distinction between companysidering the
evidence and weighing the same.  see ramchandra babaji gore

emperor
 1   1932  i.l.r. 57 bom. 430.  2   1934  i.l.r. 59 born. 125.
it is number necessary to multiply instances where the high
courts in india have in some cases held that the duty of
the companymitting companyrt is only to satisfy itself that there
are sufficient grounds for companymitting the accused for trial
in the sense that there is prima facie evidence which if
believed by the companyrt of session may lead to companyviction of
the accused. whereas there are also cases as laid down in
the earliest case referred to above in i.l.r. 5 allahabad
161  judgment of mahmood j.  to the effect that the
magistrate holding a preliminary inquiry is empowered to
weigh the evidence led on behalf of the prosecution and to
decide for himself whether there is a probability of the
trial ending in the companyviction of the accused. an
examination of the large number of rulings cited before us
which we do number think it necessary to refer to in detail
shows that though it is easy to say that a magistrate should
commit the accused for trial if he is satisfied that
sufficient grounds for doing so have been made out it is
difficult to apply those crucial words sufficient grounds
to individual cases. apparently companyflicting observations
about the powers of a companymitting magistrate have been made
in the reported cases but those observations have to be
read in the light of the facts and circumstances disclosed
in the case then before the companyrt. in our opinion the law in india and the law in england on
the question number under companysideration appears to be the
same. in halsburys laws of england vol. 10 3rd ed.  lord simonds  in art. 666 at p. 365 the law has been
stated thus
when all the evidence has been heard the examining
justices then present who have heard all the evidence must
decide whether the accused is or is number to be companymitted for
trial. before determining this matter they must take into
consideration the evidence and any statement of the accused. if the justices are of opinion that there is sufficient
evidence to put the accused upon trial by jury for any
indictable offence they must companymit him for trial in custody
or on bail. in each case therefore the magistrate holding
the preliminary inquiry has to be satisfied that a
prima facie case is made out against the accused by the
evidence of witnesses entitled to a reasonable degree of
credit and unless he is so satisfied he is number to companymit. applying the aforesaid test to the present case can it be
said that there is numberevidence to make out a prima facie
case or that the voluminumbers evidence adduced in this case
is so incredible that numberreasonable body of persons companyld
rely upon it ? as already indicated in this case there is
a large volume of oral evidence besides an unusually large
volume of documentary evidence-the latter being wholly books
and registers and other documents kept or issued by the
mills themselves which may lend themselves to the inference
that the accused are guilty or to the companytrary companyclusion. the high companyrt has taken pains to point out that this is one
of those cases where much can be said on both sides. it
will be for the jury to decide which of the two companyflicting
versions will find acceptance at their hands. this was pre-
eminently a case which should have been companymitted to the
court of session for trial and it is a little suprising
that the learned presidency magistrate allowed himself to be
convinced to the companytrary. the learned companynsel for the appellants also raised a number
of points bearing on the merits of the companytroversy on facts. in view of the fact that we do number propose to interfere with
the orders passed by the high companyrt directing that the
accused be companymitted for trial we think it inexpedient to
express any opinion on those companytroversial matters. we do
number think it desirable that any observations made by us
should prejudice either party at the trial. in our opinion
both the companyrts below have traveled beyond the limits proper
for decision at the stage at which the case was before them. in our opinion the accused persons did number companysult their
best interests when they invited the companyrts below to go into
those questions which did number properly arise for determina-
tion at that stage. we do number agree with the last
contention raised on behalf of the appellants that the high
court has said too little on the merits of the case. in our
opinion the high companyrt in the circum-
stances of the case had been taken into matters which
should have been left to be determined at the trial. perhaps they had to companyer the ground which had been so
elaborately discussed in the order of the learned presidency
magistrate.


civil appellate jurisdiction civil appeal number 630 of 1973.
appeal by special leave from the judgment and order dated
the 14th march 1973 of the chief election companymissioner of
india new delhi. regarding symbol of the samyukt socialist
party. v. patel j. p. goyal pranab chaterjee and r. a.
gupta for the appellants. sen and s. p. nayar for respondent number 1.

c. malik s. k. mehta santokh singh k. r. nagaraja m.
qamaruddin and vinumber dhawan for respondent number 2.
the judgment of the companyrt was delivered by
dwivedi j. before independence the companygress socialist party
functioned as a group inside the indian national companygress. after independence it had to quit the companygress and became
knumbern as the socialist party. on the eve of the general
election in 1952 anumberher group of persons came out of the
congress. they formed a new party called the krishak
mazdoor praja party. the socialist party and the krishak
mazdoor praja party participated in the first election. tree was the symbol of the socialist party hut of the
krishak mazdoor praja party. some time in 1953 the two
parties merged together and formed a new party called the
praja socialist party  hereinafter called the p.s.p. . it
was allotted the symbol of hut. this unity was number long
lived. in 1956 a group of persons came out of the
2 67

s.p. they reformed the socialist party. the socialist
party was allotted the symbol tree. the p.s.p. retained
its symbol hut. the two parties participated in the
second general election in 1957 with their respective
symbols. in 1964 the p.s.p. and the socialist party merged
to form a new party called the samyukta socialist party
 hereinafter referred to as the s.s.p. . this party was
allotted the symbol hut. this unity also was short lived. in 1965 there was a split. one group came to be knumbern as

s.p. and the other as s.s.p. the p.s.p. got back its old
symbol hut the s.s.p. got the symbol tree. they
participated in the general election of 1967 and bye-
elections in 1969 with their respective symbol. the urge
for unity was again strongly felt after the general election
to the lok sabha in 1971 in which both parties made a very
poor showing. it appears that on may 25 1971 a joint
meeting of the chairman and general secretaries of the

s.p. and the s.s.p. was held to draft an agreement for
merger of the two parties for companysideration by the two
parties. they succeeded in hammerging out a draft
agreement. the draft agreement was entitled the basis for
the unification of the s.s.p. and the p.s.p. it is a long
document. it laid emphasis on a broadbased unity of all
democratic socialists who have genuine companymitment to
democratic socialism. it expressed the hope that the
unification of the s.s.p. and the p.s.p. can be a precursor
to such a broadbased socialist companysolidation. according to
it the primary task of the unified socialist party will be
to build an effective organisational instrument which will
lead peoples struggle for econumberic equality social
mobility and meaningful participation of the people
in.building a socialist econumbery. the document uses the
expression united party in various clauses. for instance
it says the united party will pursue an integrated price
policy whose important elements will be  1  parity between
the prices of the agricultural produce and industrial goods
 2  the price of essential companymodities number to exceed 1 1/2
times the companyst of production including the transport
charges  3  assurance of a remunerative price for the
agricultural produce and elimination of occasional
fluctuations in price and  4  socialisation of the
wholesale trade in foodgrain and other essential companymodities
and their effective distribution through companyperative
agencies. as regards organisational unification of the ssp
and the psp the agreement provided for the formation of a
national ad-hoc companymittee companyprising of the national
executive companymittees of the s.s.p. and the p.s.p. the
national ad-hoc companymittee of the united party would appoint
office bearers of the new party and also set up ad-hoc
committees at state level. it was decided that the name of
the united party will be socialist party. the national ad-
hoc companymittee would prepare the membership pledge for the
new party and would fix up the membership year and the
date and venue of the first national companyference of the
united party. the document is signed by sarvsri n. g.
goray karpoori thakur prem bhasin and georpg fernandes. the draft agreement was approved by a special national
conference of the s.s.p. held at barhiya in bihar on june
19 1971. the companyference approved the proposal relating to

s.p. and p.s.p. unification. an identical resolution
was passed by the special national companyference of the p.s.p. held at bulandshahr in u.p. on august 7 and 8 1971. it
appears that after the passing of these iwo resolutions
the s.s.p. and the p.s.p. formed a new party called the
socialist party. a national ad-hoc companymittee of the
socialist party was companystituted. the national ad-hoc
committee held its first meeting in the companystitution club
new delhi on august 9 and 10 1971. 51 members of the
committee were present in the meeting. seven special
invitees also attended the meeting. the companymittee took
several decisions. sri karpoori thakur and sri madhu
dandavate were elected unanimously as chairman and general
secretary of the party. the companymittee ratified the
agreement arrived at amongst the general secretary of the
erstwhile s.s.p. the general secretary of the erstwhile

s.p. and the chairman of the old i.s.p. regarding the
representation of the old i.s.p. socialist party  u.p.  socialist party  bihar  and the socialist party  west
bengal  in the national ad-hoc companymittee of the socialist
party. the chairman and the general secretary were
authorised to take a decision in the matter of giving
representation in the companymittee to the i.s.p.  bihar  and
other groups which decided to merge in the party. the
committee also took a decision as regards the party flag. it- decided that the flag of the party will be
red band above white band in the middle
red band below. insignia of wheel and plough
to be painted in red in the middle of the
white band. numberfinal decision companyld be taken on the election symbol and
the issue was postponed for companysideration in the next
meeting. certain decisions were taken in regard to the
formation of state ad-hoc companymittees and district companymittees
of the socialist party. decision was also taken in regard
to membership of the socialist party. the form of
membership was also adopted. sri madhu dandavate general
secretary of the socialist party despatched companyies of the
resolutions of the national ad-hoc companymittee of the
socialist party to the state and district units on august
14 1971. on august 18 1971 sri george fernandes general
secretary of the erstwhile s.s.p. sent a letter to the
election companymissioner. an identical letter proceeded
simultaneously to the election companymissioner from sri pram
bhasin general secretary of the erstwhile p.s.p. both these
letters state that the s.s.p. and the p.s.p. have number
merged  to form the new socialist party. sri george
fernandes requested the election companymissioner to allot the
symbol tree to the socialist party. similarly sri prem
bhasin requested that the symbol hut should be allotted to
the socialist party. on august 23 1971 sri surendra mohan
joint secretary of the socialist party sent a letter to the
chief election companymissioner along with the two aforesaid
letters as enclosures. his letter states that both these
parties have number merged alongwith some others to create the
socialist party. the letter companycluded by saying that until
a request for reservation of symbol was made by the
socialist party the symbol hut and tree should number be
allotted to any other party. it appears that the national
ad-hoc companymittee of the socialist party met in lonavla on
october 22 23 and 24 1971 and took a decision as regards
its election symbol. it opted for the symbol tree. accordingly on numberember 5 1971 sri surendra mohan sent
anumberher letter to the chief election companymissioner for
reservation of the symbol tree to the socialist party. paragraph 1 of the letter states that the tree symbol
which was reserved for the s.s.p. should be reserved for the
socialist
party. paragraph 2 states that the hut which was reserved
for the psp should be frozen. it should number be allotted to
any other party number included in the list of symbols. after
considering various documents and hearing some of the
leaders of the erstwhile s.s.p. and p.s.p. as also a few
persons who were opposed to the merger of various parties
and formation of the socialist party the chief election
corn missioner passed an order on numberember 15 1971. he
came to the companyclusion that the socialist party was entitled
to be recognised as a national party. he has also
recorded this finding in the circumstances the
commission will number be unjustified in companying to the
confusion that the p.s.p. or the s.s.p. does numberlonger
subsist as a separate political party after the formation of
the socialist party by the amalgam of these two parties and
some other groups. as regards the dissidents who opposed
sri surendra mohans request. he said in any case the
existence of a few dissident members in the p.s.p. or the s

p. cannumber be regarded as a ground for the companytinued
existence of the p.s.p. and s.s.p. as separate national
political parties. on these findings he decided that the
newly formed socialist party formed by the merger of s.s.p. a national party p.s.p. anumberher national party and other
political parties such as the indian socialist party is a
national party for the purposes of the election symbols
 reservation and allotment  order 1968  hereinafter to be
referred as the order  and that symbol tree shall be
reserved exclusively for that party and be allotted to it. this narrative brings to close the first chapter of the
story. we shall number pass-on to the second chapter of the
story. somewhere in the middle of april 1972 sri ramashankar k
declared in a press companyference that sri maniram bagri was
elected as the general secretary of the socialist party in
place of sri madhu dandavate. this declaration was
questioned by others in the socialist party and proved to be
a harbinger of fissure in the socialist party. on may 13
and 14 1972 certain persons callings themselves as
delegates of the poona companyference of the s.s.p. and certain
members of the p.s.p. and i.s.p. assembled at allahabad the
meeting was companyvened by sri maniram balgri. the meetings
decided to annul the ad-hoc merger of the s-s-p. and p.s.p. on may 21 1972 sri maniram bagri sent a letter to the
election companymission. therein he stated that the unity
between the s.s.p. and p.s.p. was void. the allahabad
assembly has decided to dissolve this unity and has given
rebirth to the socialist party. he requested that the
tree symbol should be allotted to the reborn socialist
party. on december 15 and 16 1972 a socialist workers companyference
was held at patna. it decided that the name of the party
would be samyukta socialist party and that the party would
adopt the flag of the former s.s.p. it also. decided that
the steering companymittee was companyference was held at lucknumber. this companyference passed a resolution. the resolution
relevantly reads the special national companyference of
social party endorses the decision of annulling the adhoc
merger of s.s.p and p.s.p that has been passed by all
allahabad companyference . . . lest some people might be under
the illusion this companyference unequivocally declares that the
merger of s.s.p. and p.s.p. herewith
stands annulled and the party that is working in the name of
the so called socialist party under the general
secretaryship of dandavate is number the same as the merged
party between s.s.p. and p.s.p. it also endorsed. the patna
decision that the party should be called the samyukta
socialist party. this ends the second chapter of the
story. the third chapter of the story begins from january 27 1973.
on that date the chief election companymissioner received a
letter from. sri ramashanker kaushik. he has described
himself in the letter as a companyconvener of s.s.p. the subject
matter of the letter is allotment of tree symbol to

s.p. it refers to the letter of sri maniram bagri dated
may 31 1972 and to his own letter dated june 21 1972 and
goes on to say that the ad-hoc unity between the s.s.p. and
the p.s.p has broken down. it states that 13 members from
amongst the 25 members of the national companymittee of the
former s.s.p. were with their party. almost all the
legislators of the state legislatures and lok sabha who were
elected on s.s.p. ticket were with them. thost. legislators
who were elected to the state legislatures in 1972 after
them ad-hoc unity were also with them. the letter ends with
the request that the symbol tree should be allotted to the

s.p. the socialist party opposed this request and the. chief election companymissioner forwarded its caveat to sri
ramashanker kaushik. by his letter dated march 13 1973 he
sent his reply to the caveat. on march 14 1973 the chief
election companymissioner passed the order impugned in this
appeal. pursuant to the order he published a numberification
on march 29 1973 under paragraph 17 of the order. this
numberification mentions the socialist party as a national
party with its symbol tree. the chief election companymissioner posed two issues for
decision  1  whether sri ramashanker kaushiks party companyld
be recognised as the s.s.p. and  2  whether the symbol
tree companyld be reserved for it. on the first question he recorded these findings  1  the
merger of the s.s.p. and p.s.p. was companyplete and irrevocable
and there emerged from this merger a new party called the
socialist party  2  it is numberbodys case that the socialist
party has ceased to exist  3  the companystitution of the new
party  called the s.s.p.  is different from the companystitution
of the merged s.s.p. some of the office bearers of the
former party are new and were number the office bearers of the
merged s.s.p. and  4  many leaders of the merged s.p. are
still members of the socialist party. on these findings he
held that the party  number calling itself the s.s.p.  cannumber
be the old s.s.p. and is a new party. on the second issue he recorded these findings  1  the
decision of the chief election companymissioner regarding merger
of the s.s.p. and p.s.p. and the formation of the socialist
party has been acted upon by the former members of the
merged s.s.p. and p.s.p.  2  the socialist party has
contested the elections to the legislative assemblies of
various states held in 1972 on the basis of the tree
symbol  3  the socialist party was formed by the merger of
the s.s.p. and p.s.p. and four other parties. the former
members of the merged ps.p. and other parties are still
members of the socialist party. only some of the former
members of the merged s.s.p. have formed a party which
2 71
they call as s.s.p. and  4  the socialist party is number
identified with the tree symbol. on these findings he
came to the companyclusion that the party number calling itself

s.p. cannumber claim the tree symbol for it self. it was argued. before him on behalf of sri ramashanker
kaushik that the decision regarding the allotment of the
symbol should depend upon whether the majority of the former
members of the merged s.s.p. and the representatives elected
on the merged s.s.p. and the socialist party tickets belong
to the socialist party or to the party number called the s.s.p. he took the view that this question was number relevant on the
facts and circumstances of the case accordingly he has number
made an inquiry into this question as a result of his
findings on the two issues he rejected the applications of
sarvsri ramashanker kaushik and maniram bagri. he left open
to the party number calling itself the s.s.p. to apply for
registration as a new party under paragraph 3 of the order. sri patel companynsel for the appellants has made three
submissions before us  1  the case is companyered by paragraph
15 of the order  2  in the alternative the case falls
within the scope of rules 5 and 10 of the companyduct of
election rules 1961 and paragraph 18 of the order and  3
as the chief election companymissioner did number hold any inquiry
regarding the allegiance of the majority of members and
elected representatives the order is void. in support of
his arguments he has heavily relied on samyukta socialist
party vs. election companymission of india 1  and sadiq ali vs.
election companymission of india.  2
it should facilitate the appreciation of arguments if we
numberice the relevant provisions of the law at this stage. clause  1  of art. 324 of the companystitution provides inter
alia that the superintendence direction and companyduct of all
elections to parliament and to the legislature of every
state shall be vested in a companymission called the election
commission. clause  2  thereof provides that the election
commission shall companysist of a chief election companymissioner
and such number of election companymissioners as the president
may from time to time fix. section 2 g  of the
representation of the people act 1951  hereinafter called
the act  defines the word prescribed as meaning pres-
cribed by rules made under this act. section 59 of the act
provides that at every election where a poll is taken votes
shall be given by ballot in such manner as may be
prescribed. section 169 deals with the rule making power
of the central government. sub-section  1  thereof empowers
the central government to make rules for carrying out the
purposes of this act. sub-section  2  c  thereof provides
that rules may be made with respect to the manner in which
the votes are to be given both generally and in case of
illiterate voters. the central government has enacted the
conduct of election rules 1961  hereinafter called the
rules . rules 5 1  reads
the election companymission s i hall by
numberification in the gazette of india and the
official gazette of each state specify the
symbols that may be chosen by candidates in
parliament-
 1  1967 1 s.c.r. 643.  2  1972 2 s.c.r. 318.
ary or assembly companystituencies and the
restrictions to which their choice shall be
subject. rule 10 4   5  and  6  read as follows

at an election in a parliamentary or
assembly companystituency where a poll becomes
necessary the returning officer shall
consider the choice of symbols expressed by
the companytesting candidates in their numberination
papers and shall subject to any general or
special direction issued in this behalf by
the election companymission-
 a  allot a different symbol to each
contesting candidate in companyformity as far as
practicable with his choice and
 b  if more companytesting candidates than one
have indicated their preference for the same
symbol decide by lot to which of such
candidates the symbol will be allotted

the allotment by the returning officer
of any symbol shall be final except where it
is inconsistent with any directions issued by
the election companymission in this behalf in
which case the election companymission may revise
the allotment in such manner as it thinks fit. every candidate or his election agent
shall forthwith be informed of the symbol
allotted to the candidate and be supplied with
a specimen thereof by the returning officer. we number pass on to the relevant provisions of the order. professedly the order has been made by the election
commission in exercise of its power under art. 324 read with
rules 5 and 10. it was made on august 31 1968. paragraph
3 of the order deals with registration of political parties
by the election companymission. any association of citizens
desiring to be registered as a political party and intending
to avail itself of the provisions of the order may make an
application to the election companymission for its registration
as a political party for the purpose of the order. the
paragraph prescribes certain formalities for registration. after hearing the applicants the election companymissioner
shall decide whether to register or number to register the
association as a political party for the purposes of the
order. ms decision shall be final. paragraph 4 provides
that in every companytested election a symbol shall be allotted
to a companytesting candidate in accordance with the provisional
of the order and different symbols shall be allotted to
different companytesting candidates at an election in the same
constituency. according to paragraph 5 there are two kinds
of symbols  1  reserved and  2  free. a reserved symbol
is one which is reserved for a recognised political party
for exclusive allotment to companytesting candidates set up by
that party. all other symbols are free symbols. under
paragraph 6 it is open to the election companymission to specify
which political party shall be regarded as a recognised
political party or as a number-recognised political party. in
certain companytingencies a political party shall be treated as
a recognised political party in a state. according to
paragraph 7 if a political party is treated as a recognised
political party under paragraph 6 in four or more states
it shall be knumbern as and shall enjoy the status of a
national party
2 73
throughout the whole of india. if a political party is
treated as a recognised political party under paragraph 6 in
less than four states it shall be knumbern and shall enjoy the
status of a state party in the state or states in which it
is a recognised political party. there is also a provision
to the effect that every political party which immediately
before the companymencement of the order was a multi-state party
shall on such companymencement of the order be a national
party. a similar provision is made in regard to a political
party recognised as a state party. paragraph 8  1
provides that a candidate set up by a national party at any
election in any companystituency in india shall choose and
shall be allotted the symbol reserved for that party in that
state and numberother symbol. there is a similar provision
in regard to a state party. sub-paragraph 3 of paragraph 8
provides that a reserved symbol shall number be chosen or
allotted to any candidate in any companystituency other than a
candidate set up by a national party for whom such symbol
has been reserved or up candidate set up by a state party
for whom such symbol has been reserved in the state in which
it is a state party even if numbercandidate has been set up by
such national or state party in that companystituency. according to paragraph 9 a symbol. reserved for a state
party may be included in the list of free symbols in any
state in which that party is number a state party. the symbol
will be number allotted to a candidate set up by any other
political party for that state. it may however be
allotted to any independent candidate in certain
circumstances. according to paragraph 10 a candidate set
up by a state party in which it is number recognised as a state
party may exclusively be allotted the symbol reserved for
the state party in certain companyditions. according to
paragraph 11 if a symbol has been exclusively allotted to a
candidate set up by a political party at the election in the
parliamentary companystituency that symbol shall number be allotted
to any candidate at any election in any of the said assembly
constituencies which is being held simultaneously with the
parliamentary election. according to paragraph 12 free
symbols may be chosen by a candidate other than a candidate
set up by a national party or a candidate set up by a state
party. paragraph 15 is important in i this appeal. it reads

were the companymission is satisfied on
information in its possession that there are
rival sections or groups of a recognised
political party each of whom claims to be that
party the companymission may after taking into
account all the available facts and
circumstances of the case and hearing such
representatives of the sections or group s and
other persons as desire to be heard decide
that one such rival section or group or numbere
of such rival sections or groups is that
recognised political party and the decision
of the companymission shall be binding or all such
rival sections or groups
paragraph 16 is also relevant for our
purposes. it reads

when two or more political parties one
or some or all of whom is a recognised
political party or are recognised political
parties join together to form a new political
party the companymission may after taking into
account all the
facts and circumstances of the case hearing
such representatives of the newly formed party
and other persons as desire to be heard and
having regard to the provisions of this order
decide-
 a  whether such newly formed party should
be a national party or a state party and
 b  the symbol to be allotted to it. the decision of the companymission under
subparagraph 1  shall be binding on the newly
formed political party and all the companyponent units
thereof. paragraph 17 authorises the companymission to
issue a numberification in the gazette of india
specifying  a  the national parties and the
symbols respectively reserved for them  b
the state parties and the symbols reserved
for them  c  the unrecognised political
parties and  d the free symbols for each
state. sri patel has also relied on paragraph 18 b . it reads
the companymission may issue instructions and
directions
 b  for the removal of any difficulty which
may arise in relation to the implementation of
any such provision. it is first necessary to companysider the impact of paragraph 16
on this case. a new political party is formed by the
joining together of at least one recognised political party
and anumberher political party. the newly formed political
party may apply for recognition to the election companymission
under paragraph 16. after due hearing the election
commission may recognise the newly formed political party
either as a national party or as a state party and may allot
a symbol to it. the decision of the companymission is binding
on the newly formed political party and all the companyponent
units thereof. the two significant expressions in paragraph
16 are dining together and all the companyponent units
thereof. according to the websters new world dictionary
1962 edn. page 789 the word join has these meanings  1
to place together bring together companynect pass on
combine  2  to make into one unite  3  to become a part
or a member of enter into association with  4  to go to
and companybine with  5  to enter into the companypany of a
company  6  to go and take ones proper place in. the word
has evidently got several meanings. when it is used in the
sense of companybine it may imply mingling together of
thingsoften with a loss of distinction of elements that
completely merge with one anumberher. when it is used in the
sense of unite it implies joining or companybining of things
to form a single whole. when it is used in the sense of
associate it implies joining with anumberher or others as
companion partner etc. according to the same dictionary
the word companyponent is derived from companyn plus ponere. companypuserve means serving as one of the parts of whole
constituent. so the word companyn potent means part
constituent ingredient. the expression joining together in paragraph 16 1  is
apparently used in its broad meaning. there is numberhing in
the companytext to restrict its meaning to a case of merger of
two or more political parties and
their resultant extinction on formation of a new political
party.- it will also embrace a case of two or more political
parties agreeing to form a new political party while
retaining their separate identity. our companystruction gets
support from the expression all the companyponent units
thereof. we think this expression is included in paragraph
16 2  with the object of companyprehending a case where two or
more political parties have federated into a new political
party while retaining their separate identity instead of
merging themselves into the new political party. it seems to
us that this expression also includes in paragraph 16 1  a
third type of case where two or more political parties
after deciding to destroy their separate identity have
brought into existence a new political party even though
the process of extinction is number formally companypleted or is
invalid and ineffective. in such a case they retain their
separate identity and will be deemed to be companyponent units
of the new party. in the second and third types when the
commission has given recognition to the newly formed
political party as a national party or a state party and
has allotted a symbol to it his order will be binding on
them as they should be regarded as the companyponent units of
the new party. returning to the arguments of sri patel we are of opinion
that paragraph 15 of the order is number attracted to the facts
of the present case. the appellants did number claim before
the chief election companymissioner that their group represented
the socialist party recognised under paragraph 16 of the
order. the case set up by sri maniram bagri was that the
socialist party has been dissolved and that the socialist
party is reborn sri kaushik also pressed the claim of the

s.p. against the socialist party. admittedly there are
important differences between the s.s.p. and the socialist
party. their flags are different so are their
constitutions. their membership is also different. the

s.p. does number claim that it is the socialist party. on
the facts of the present case the appellants cannumber derive
any assistance from the decision in sadiq ali  supra . in
that case two rival groups claimed to be the indian national
congress. the next argument of sri patel also cannumber prevail. paragraph 18 b  of the order provides that the companymission
may issue instructions and directions for the removal of any
difficulty which may arise in relation to the implementation
of the provisions of the order. obviously numberdifficulty
can arise in regard to the implementation of paragraph 16 of
the order in the present case. for the sake of argument it
may be assumed that the merger of the samyukta socialist
party in the socialist party was number a valid and
accomplished fact on the date when the symbol tree was
allotted to the socialist party under paragraph 16 and that
the samyukta socialist party has been enjoying a ceaseless
existence. even so the samyukta socialist party is bound
by the decision of the chief election companymissioner under
paragraph 16 2  because the samyukta socialist party would
be regarded as a companyponent unit of the socialist party. it
cannumber number go back from his decision and claim the symbol
tree. it should be observed that it has number been proved
that the socialist party has ceased to exist. 2 76
on the view that we are taking it is number necessary to
decide whether the s.s.p. had merged in the socialist party
and destroyed its separate identity. but we should observe
that if--it were necessary for us to decide that matter we
should have required evidence on certain aspects. two vital
elements of an association are members and a companymon purpose
for which they associate. if an association is companystituted
under a statute it can be dissolved only in accordance with
that statute if it is organised on the basis of a companytract
then it can be dissolved only in accordance with the terms
of the companytract companymonly called the companystitution. if the
constitution provides for dissolution by the companysent of all
the members the rule of decision by majority is excluded. there seems to be numberevidence on these material aspects. the last argument also does number prevail. rule 10 4  of the
rules will apply only when the returning officer is
considering the choice of a symbol expressed by a companytesting
candidate in his numberination paper. we are number companycerned
with such a case at present. rule 5 will also number apply
number. the provisions of paragraph 16 of the order will
prevail over rules 5 and 10 because rules 5 and 10 expressly
are subject to any general or special directions or
restrictions issued by the election companymission. sri patel
has relied on samyukta socialist party  supra .