PETITIONER: STATE THROUGH CBI Vs. RESPONDENT: DAWOOD IBRAHIM KASKAR & ORS. DATE OF JUDGMENT: 07/05/1997 BENCH: M.K. MUKHERJEE, G.T. NANAVATI, B.N. KIRPAL ACT: HEADNOTE: JUDGMENT:

Present:

Hon'ble Mr.Justice <NAME> Hon'ble Mr.Justice <NAME> Hon'ble Mr.Justice <NAME>, Attorney General, and <NAME>, Additional Solicitor General, <NAME>, <NAME>, Advs.

with them for the appellant.

<NAME>, Sr. Adv. (A.C.), <NAME>, Sr. Adv. <NAME>, Adv. (A.C.), <NAME>, <NAME> and Ms. <NAME>, <ORG>., with them for the Respondents.

J U D G M E N T The following Judgment of the Court was delivered: <NAME>, J.

The principal question that is required to be answered in these appeals is when and under what circumstance a <ORG> can invoke the provision of Section 73 of the Code of Criminal Procedure, 1973 (`Code' for short). The question arises in this way.

On March 12, 1993 a series of bomb explosions took place in and around the city of Bombay which result in the death of 257 persons, injuries to 713 persons and damage to properties worth Rs. 27 crores (approximately). Over the explosion 27 criminal cases were registered and on completion of investigation a composite charge-sheet was forwarded to <ORG>, Greater Bombay on November 4, 1993 against 198 accused persons, showing 45 of them absconders, for commissioner of various offences punishable under the Indian Penal Code , the Terrorist and Disruptive Activities (Prevention) Act, 1987 (`TADA' for short) Arm Acts, 1959, Explosives Substances Act , 1908 and other Acts. On that charge-sheet <ORG> took cognizance and the case registered thereon was numbered as B.B.C. (Bomb Blast Case) No.1 of 1993.

A few days thereafter - on November 11, 1993 to be precise - <ORG>, with the consent of the Government of Maharashtra, issued a notification entrusting further investigation in the above case to <ORG> (<ORG>) under the provisions of Section 5 of the <ORG> Act, 1946. Pursuant thereto <ORG> registered a case being No. R.C. 1 (5)/93/S.T.F. Bombay on November 19, 1993 and took up further investigation with permission of <ORG>.

In course of such investigation <ORG> apprehended <NAME> @ <NAME>, one of the absconders mentioned in the charge-sheet, on July 24, 1995. He made a confessional statement before <NAME>, Deputy Inspector General of Police, <ORG>, Ahmedabad, which was recorded by him on August 18 and 19, 1995 under Section 15 of TADA. In that confession he disclosed that the respondent Nos. 2 to 7 herein (hereinafter referred to as the `respondents) had taken active part in the criminal conspiracy which was the subject matter of B.B.C. No. 1 of 1993. Thereafter on May 2, 1996, the <ORG> moved an application before <ORG> (Misc. Application No. 201 of 1996) wherein it stated that following the disclosure of the involvement of the respondents in the offences in question, raids has been conducted at their known hideouts to arrest them but none could be apprehended in spite of best efforts as they were deliberately evading their arrest to escape the clutches of law and, accordingly, prayed for issuance of non-bailable warrants of arrest against them to initiate further proceedings in the matter to apprehend them and/or to take further action to declare them as proclaimed offenders. Two other applications (Misc. Application Nos. 210 and 211 of 1996) were thereafter moved on June 3, 1996 for publication of written proclamations under Section 8(3)(a) of TADA as also for issuance of open dated non-bailable warrants of arrest so that `Red Corner Notices' might be issued against them. According to <ORG> such notices are required to be got issued by <ORG> to seek police assistance in a foreign country to locate and apprehend fugitives.

When the three applications came up for hearing a learned Advocate who was appearing for some of the persons arraigned in B.B.C. No. 1 of 1993 submitted before <ORG> they were entitled to copies of the applications and a right of hearing on their merits in the matter. <ORG> accepted his submission; and on receipt of the copies of the application the learned Advocate filed a rejoinder thereto. After hearing the parties <ORG>, by its order dated August 1, 1996, rejected the applications. The above order is under challenge in these appeals preferred at the instance of <ORG>.

From the impugned order we find that before <ORG> it was submitted on behalf of <ORG> that since it was making further investigation into the offences in respect of which chargesheet has earlier been submitted and since the presence of the respondents, who were absconding, was absolutely necessary for ascertainment of their roles, if any, in commission of the offences, it was felt necessary to file the applications. It was further submitted that only after warrants and/or proclamations as prayed for were issued, that it (<ORG>) would be able to take further coercive measure to compel them to appear before <ORG> for the purpose of intended further investigation. According to <ORG> under Section 78 of the Code and Section (3)(a) of TADA <ORG> was fully empowered to issue warrants of arrest and proclamations. In rejecting the above contention <ORG> held that after cognizance was taken in respect of an offence process could be issued to the persons accused thereof only to compel them to face the trial but no such process could be issued by the <ORG> in aid of investigation under Section 73 of the Code. According to <ORG>, though under code further investigation was not barred there was no provision therein which entitled <ORG> to seek for and obtain aid from the <ORG> for the same. Since the above findings were recorded by <ORG> relying solely upon the judgment of the Bombay High <ORG> in <NAME> vs. State of Maharastra. (1994) Crl.L.J. 1854, it will be necessary to refer to the same in some details. In that case investigation into an offence of murder and other related offences was taken up initially by the Officer-in-Charge of Byculla Police Station and thereafter by a Deputy Commissioner of Police (DCP) of CID. During the investigation <ORG>, on the prayer of the DCP, issued non-bailable warrants for apprehension of some of the accused involved in those offences. Thereafter a charge-sheet came to be filed against several accused, some of whom were before the <ORG> and some other including <NAME> (the petitioner before the High <ORG>) were shown as absconding. In the very day the charge-sheet was filed Designated <ORG> took cognizance of the offences mentioned therein. Few months later <NAME> came to be arrested by the <ORG>, Delhi in connection with some other offence. On receipt of that information the DCP filed an application before <ORG> for warrants of arrest and production of <NAME> before it. The prayer was allowed and in due course <NAME> was brought to Bombay and handed over to DCP. On the following day <NAME> was produced before <ORG>; and on such production the prosecution prayed for remand of <NAME> to police custody. The prayer was allowed and <ORG> remanded him to police custody, but kept the order in abeyance for a few days to enable <NAME> to challenge the same in a superior court. Assailing the above order of <ORG>, <NAME> moved the Bombay High <ORG>. Before the High <ORG> it was submitted on behalf of <NAME> that once investigation into an offence was complete and a charge-sheet was filed, the provisions of Section 309 of the Code came into operation and sub-section (2) of the said Section left no discretion to a <ORG>. The only course open to the <ORG> then was to remand the accused to judicial custody. It was further submitted that whereas Section 167 conferred a discretion upon the <ORG> of authorising detention of an accused either in judicial custody or police custody such discretion was completely absent in Section 309 of the Code. Accordingly, it was submitted that the order passed by <ORG> granting <NAME> to Police custody was without jurisdiction and liable to be set aside. In accepting the above contention and quashing the impugned order the High <ORG> firstly observed:

"It would, therefore, follow that the warrants which were issued by <ORG> for production of the petitioner could not have been in aid of investigation but could only have been by way of process issued under Section 204 of the Code of Criminal Procedure. Issue of warrants after cognizance of an offence is taken would be a process contemplated under Section 204(1)(b) of the Code, i.e. it would be a process to face trial. Indeed. We do not find any provision contained in the Code for issue of warrants of arrest and custody of accused for the purpose of, or in aid of, investigation. The process contemplated is a process to face trial."

(emphasis supplied) <ORG> further observed: "We are conscious that the view we are taking is likely, in certain case such as the present one, to hamper investigation. However, this is not a matter for us. We have construed the provision of the Code and have found that no power is conferred for providing for police custody after cognizance of the offence is taken."

(emphasis supplied) In view of the provision of Chapter XII and those of Section 309(2) of the Code we are constrained to say that the above quoted observations have been made too sweepingly. Chapter XII relates to information to the police and their powers to investigate. Under Section 154 thereof whenever an Officer-in-Charge of a police station receives and information relating to the commission of a cognizable offence he is required to reduce the same in writing and enter the substance thereof in a prescribed book. Section 156 invests the Officer-in-Charge of a police station with the power to investigate into cognizable offences without the order of a Magistrate and Section 157 lays down the procedure for such investigation. In respect of an information given of the commission of a non-cognizable offence, the Office-in-charge required under Section 155(1) to enter the substance thereof in the book so prescribed but he has no power to investigate into the same without an order of the competent Magistrate. Armed with such an order the Officer-in-charge can however exercise all the power of investigation he has in respect of a cognizable offence except that he cannot arrested during investigation has to be dealt with by the investigation Agency, and by the Magistrate on his production before him, is provided in Section 167 of the Code. The said Section contemplates that when the investigation cannot be completed within 24 hours fixed by Section 57 and there are grounds to believe that the charge levelled against the person arrested is well founded it is obligatory on the part of the Investigation Officer to produce the accused before the nearest Magistrate. On such production the Magistrate may authorise the detention of the accused initially for a term not exceeding 15 days either in police custody, or in judicial custody. On expiry of the said period of 15 days the Magistrate may also authorise his further detention otherwise than in police custody if he is satisfied that adequate grounds exist for such detention. However, the total period of detention during investigation cannot be more than 90 days or 60 days, depending upon the nature of offences mentioned in the said Section. Under Sub-section (1) of Section 173 the Officer-in-charge is to complete the investigation without unnecessary delay and as soon as it is completed to forward, under Sub-section (2) thereof, to the competent Magistrate a report in the form prescribed setting forth the names of the parties, the nature of the information and the names of the persons who appears to be acquainted with the circumstances of the case. Sub-Section (8) entitles the Officer-in-Charges to made further investigation and it reads as under:

"Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under Sub- section (2) has been forward to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report to the report regarding such evidence in the form prescribed, and the provisions of sub-section (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub- section (2)."

<CITATION> , [AIR 1955 SC 196], this Court dealt with the definition of `investigation' under the Code of Criminal Procedure, 1898 (hereinafter referred to as the `old Code'), which is same under the new Code and after analysing the provisions of Chapter XIV of that Code (which corresponds to Chapter XII of the Code) stated:

"Thus under the Code investigation consists generally of the following steps: (1) Proceeding to the spot, (2) Ascertainment of the facts and circumstance of the case, (3) Discovery and arrest of the suspected offender, (4) Collection of evidence relating to the commission of the offence which may consist of (a) the examination of various persons (including the accused) and the reduction of their statements into writing, if the officer thinks fit, (b) the search of places or seizure of things considered necessary for the investigation and to be produced at the trial, and (5) Formation of the opinion as to whether on the material collected there is a case to place the accused before a Magistrate for trial and if so taking the necessary steps for the same by the filing of a charge- sheet under Section 173 ."

Though under the old Code the re was no express provision - like sub-section (8) of Section 173 of the Code

- statutorily empowering in Police to further investigate into an offence in respect of which a charge-sheet has already been filed and cognizance taken under Section 190(1)(b) , such a power was recognised by this Court in <CITATION> [AIR 1979 SC 1791]. In exemplifying the situation which may prevail upon the police to take up further investigation and the procedure the Court may have to follow on receipt of the supplemental report of such investigation, this Court observed:

"It is easy to visualise a case where fresh material may come to light which would implicate persons not previously accused or absolve persons already accused. When it comes to the notice of the investigating agency that a person already accused of an offence has a good alibi, is it not the duty of that agency to investigate the genuineness of the plea of alibi and submit a report to the Magistrate? After all the investigating agency has greater resources at its command than a private individual. Similarly, where the involvement of persons who are not already accused comes to the notice of the investigating agency, the investigating agency cannot keep quiet and refuse to investigate the fresh information. It is their duty to investigate and submit a report to the Magistrate upon the involvement of the other persons. In either case, it is for the Magistrate to decide upon his future course of action depending upon the stage at which the case is before him. If he has already taken cognizance of the offence, but has not proceeded with the enquiry of not proceeded with the enquiry of trial, he may direct the issue of process to persons freshly discovered to be involved and deal with all the accused, in a single enquiry of trial. If the case of which he has already proceeded to some extent, he may take fresh cognizance of the offence disclosed against the newly involved accused and proceed with the case as a separate case. What action a Magistrate is to take in accordance with the provisions of the Code of Criminal Procedure in such situations is a matter best left to the discretion of the Magistrate."

In keeping with the provisions of Section 173(8) and the above quoted observations, it has now to be seen whether Section 309(2) of the Code stands in the way of a <ORG>, which has taken cognizance on an offence, to authorise the detention of a person, who is subsequently brought before it by the police under arrest during further investigation, in police custody in exercise of its power under Section 167 of the Code. Section 309 relates to the power of the <ORG> to postpone the commencement of or adjournment of any inquiry of trial and sub-section (2) thereof reads as follows:

"If the Court, after taking cognizance of an offence, or commencement of trial, finds it necessary or advisable to postpone the commencement of, or adjourn, any inquiry or trial, it may, from time to time, for reasons to be recorded, postpone or adjourn the same on such terms as it thinks fit, for such time as it considers reasonable, and may be a warrant remand the accused if in custody. Provided that no Magistrate shall remain an accused person to custody under this Section for a term exceeding fifteen days at a time;"

xxx xxx xxx xxx xxx xxx xxx xxx

There cannot be any manner of doubt that the remand and the custody referred to in the first proviso to the above sub-section are different from detention in custody under Section 167 . While remand under the former relates to a stage after cognizance and can only be to judicial custody, detention under the latter relates to the stage of investigation and can initially be either in police custody or judicial custody. Since, however, even after cognizance is taken of an offence the police has a power to investigate into it further, which can be exercised only in accordance with Chapter XII, we see no reason whatsoever why the provisions of Section 167 thereof would not apply to a person who come to be later arrested by the police in course of such investigation. If section 309(2) is to be interpreted - as has been interpreted by <ORG> in Mansuri (supra) - to mean that after the <ORG> takes cognizance of an offence it cannot exercises its power of detention in police custody under Section 167 of the Code, <ORG> would be deprived of an opportunity to interrogate a person arrested during further investigation, even if it can on production of sufficient materials, convince the <ORG> that his detention in its (police) custody was essential for that purpose. We are therefore of the opinion that the words "accused if in custody" appearing in Section 309(2) refer and relate to an accused who was before the <ORG> when cognizance was taken or when enquiry or trial was being held in respect of him and not to an accused who is subsequently arrested in course of further category is concerned he can be remanded to judicial custody only in view of Section 309(2) , but he who come under the second category will be governed by Section 167 so long as further investigation continues. That necessarily means that in respect of the latter the <ORG> which has taken cognizance of the offence may exercise its power to detain him in police custody, subject to the fulfillment of the requirements and the limitation of Section 167 .

The moot question that now requires to be answered is whether a <ORG> can issue a warrant to apprehend a person during investigation for his production before police in aid of <ORG>. While Mr. <NAME>, the learned Attorney General who appeared on behalf of <ORG>, submitted that Section 73 coupled with Section 167 of the Code bestowed upon the <ORG> such power, Mr. <NAME>, who appeared as amicus curie (the respondents did not appear inspite of publication of notice in newspaper) submitted that <ORG> has no such power. To appreciate the steps of reasoning of the learned counsel for their respective stands it will be necessary to refer to the relevant provision of the Code and TADA relating to issuance of processes.

Chapter VI of the Code which is captioned as `processes to compel appearance' consists of four parts part A relates to Summons; part B to warrant of arrest; part C to proclamation and attachment and part D to other rules regarding processes. Part B, with which we are primarily concerned in these appeals, has in its fold Section 70 to

81. Section 70 speaks of the form in which the warrant to arrest a person is to be issued by the <ORG> and of its durational validity. Section 71 empowers the <ORG> issuing the warrant to direct the officer who is to execute the warrant, to release that person on terms and condition as provided therein. Section 72 provides that a warrant shall ordinarily be directed to one or more police officers but if its immediate execution in necessary and no police officer is immediate available it may be directed to any other person for execution. Section 73 which is required to be interpreted in these appeals, read as under:

"73(1) The Chief Judicial Magistrate of a Magistrate of the first class may direct a warrant to an person within his local jurisdiction for the arrest of any escaped convict, proclaimed offender or of any person who is accused of a non-bailable offence and is evading arrest.

(2) Such person shall acknowledge in writing the receipt of the warrant, and shall execute it if the person for whose arrest it was issued, is in, or enter on, any land or other property under his charge."

Section 76 requires the police officer or other person, who executes the warrant to bring the person arrested before the Courts (unless he is released in terms of Section 71 ), within twenty four hours.

Section 82 , appearing in part C empowers the <ORG> to issue proclamation; and so far as it is relevant for our present purpose, read as under:

"82(1) If any Court has reason to believe (whether after taking evidence or not) that any person against whom a warrant has been issued by it has absconded or is concealing himself so that such warrant cannot be executed, such Court may publish a written proclamation requiring him to appear at a specified place and at a specified time not less than thirty days from the date of publishing such proclamation.

(emphasis supplied) xxx xxx xxx xxx (2) xxx xxx xxx (3) xxx xxx xxx

After issuing a proclamation in terms of the above provision, the <ORG> may also order attachment of the property of the proclaimed person under Section 83 ; and even deprive him of his such property if he does not appear within the time prescribed under Section 85 .

Chapter XVI relates to commencement of proceedings before Magistrates and Section 204 appearing therein enable a Magistrate, who takes cognizance of an offence, to issue process (summons/warrant) against the accused if he finds sufficient grounds to proceed against him.

Coming now to the relevant provisions of TADA was may first refer to sub-section (3) of Section 8 relating to proclamation for and attachment of the property of a person accused of an offence punishable under TADA. Clause (a) of the above sub-section lays down that if upon a report in writing made by a police officer or an officer referred to in sub-section (1) of Section 7 , <ORG> has reason to believe that any person, who has committed an offence punishable under the Act or any rule made thereunder, has absconded or is concealing himself so that he may not be apprehended, such <ORG> may, notwithstanding anything contained in Section 82 of the Code, publish a written proclamation requiring him to appear at a specified place and at a specified time not less than fifteen days but not more than thirty days for the date of publication of such proclamation; and sub-section (3)(b) thereof entitles the <ORG> issuing the proclamation to order attachment of property belonging to the proclaimed offender and then proceed in accordance with Section 83 to 85 of the Code. For all intents and purpose, therefore, sub-section 8(3) of TADA seeks to achieve the same object as part C of Chapter VI does, namely to compel appearance of the accused. The other section to which reference need be made is Section 20 which makes the provisions of the Code applicable to the proceeding under TADA, subject to the modification envisaged therein.

The contention of Mr. <NAME> was that though in exercise of its power under Section 41 of the Code a police officer may without an order from a Magistrate and without a warrant arrest a person who is concerned in any cognizable offence of against whom a reasonable complaint has been made, or a credible information has been received or a reasonable suspicion exists, of his having been so concerned, under the Code the police has no power of its own to compel his appearance if he evades the arrest. It is in that context, Mr. <NAME> argued, that the <ORG> has been given the power under Section 73 to issue warrant of arrest for apprehension of such a person; and, thereafter, if need be, to issue proclamation and pass order for attachment of his properties. In joining issues, Mr. <NAME> urged that the scheme of the Code is that the police has complete control of the investigation and is not aided by any judicial authority. Once the investigation culminates in the police report under Section 173(2) that the <ORG> steps in by taking cognizance thereupon and issuing summons or warrant under Section 204 against the person arraigned. According to Mr. <NAME>, in the scheme of the Code it is unthinkable that the police, while investigating under Chapter XII is entitled to seek the help of a Magistrate for the purpose of issuance of a warrant of arrest in aid of investigation. As regards Section 73 , Mr. <NAME>'s argument was that in the scheme of part B of Chapter VI that section only lays down a procedure to enable a <ORG> to execute a warrant already issued under Section 204 but does not confer any right to issue a warrant, much less during investigation.

At this stage it is pertinent to mention that under the old Code the corresponding provision was Section 78 ; and while recommending its amendment <ORG> in its 41st report stated, inter alia:

"6.8 Section 78 at present confers a power on the District Magistrate or Sub-Divisional Magistrate to issue a special type of "warrant to a land-holder, farmer or manager of land within the district of sub-

division for the arrest of an escaped convict, proclaimed offender or person who has been accused of a non-bailable offence and who has eluded pursuit".

Although the power is infrequently exercised, there appear to be no objection to conferring it on all Magistrates of the first class and all .............

(emphasis supplied) Apart from the above observations of <ORG>, from a bare perusal of the Section (quoted earlier) it is manifest that it confers a power upon the class of Magistrates mentioned therein to issue warrant for arrest of three classes of person, namely, i) escaped convict, ii) a proclaimed offender and iii) a person who is accused of a non-bailable offence and is evading arrest. If the contention of Mr. <NAME> that Section 204 of the Code is the sole repository of the Magistrate's power to issue warrant and the various Sections of part `B' of Chapter VI including Section 73 only lay down the mode and manner of execution of such warrant a Magistrate referred to under Section 73 could not - and would not - have been empowered to issue warrant of arrest for apprehension of an escaped convict, for such a person can not come within the purview of Section 204 as it relates to the initiation of the proceeding and not to a stage after a person has been convicted on conclusion thereof.

That Section 73 confers a power upon a Magistrate to issue a warrant and that it can be exercised by him during investigation also, can be best understood with reference to Section 155 of the Code. As already noticed under this Section a police officer can investigate into a non cognizable case with the order of a Magistrate and may exercise the same powers in respect of the investigation which he may exercise in a cognizable case, except that he cannot arrest without warrant. If with the order of a Magistrate the police starts investigation into a non- cognizable and non-bailable offence, (like Sections 466 or 467 (Part I) of the Indian Penal Code ) and if during investigation the Investigating Officer intends to arrest the person accused of the offence he has to seek for and obtain a warrant of arrest from the Magistrate. If the accused evade the arrest, the only course left open to the Investigating Officer to ensure his presence would be to ask the Magistrate to invoke his powers under Section 73 and thereafter those relating to proclamation and attachment. In such an eventuality, the Magistrate can legitimately exercise his power under Section 73 , for the person to be apprehended is `accused of a non-bailable offence and is evading arrest.' Another factor which clearly indicates that Section 73 of the Code gives a power to the Magistrate to issue warrant of arrest and that too during investigation is evident from the provisions of part `C' of Chapter VI of the Code, which we have earlier adverted to. Needless to say the provisions of proclamation and attachment as envisaged therein is to compel the appearance of a person who is evading arrest. Now, the power of issuing a proclamation under Section 82 (quoted earlier) can be exercised by a <ORG> only in respect of a person `against whom a warrant has been issued by it'. In other words, unless the <ORG> issues a warrant the provisions of Section 82 , and the other Sections that follow in that part, cannot be invoked in a situation where inspite of its best effects the police cannot arrest a person under Section 41 . Resultantly, if it has to take the coercive measures for the apprehension of such a person it has to approach the <ORG> to issue warrant of arrest under Section 73 ; and if need be to invoke the provisions of part `C' of Chapter VI. [ Section 8 (3) in case the person is accused of an offence under TADA] Lastly, we may refer to Section 90 , which appears in part `D' of Chapter VI of the Code and expressly states that the provisions contained in the Chapter relating to a summon and warrant, and their issue, service and execution shall, so far as may be, apply to every summon and every warrants of arrest issued under the Code . Therefore, when a <ORG> issues a warrant of arrest, say under Section 155 of the Code, any steps that it may have to subsequently take relating to that warrant of arrest can only be under Chapter VI.

Now that we have found that Section 73 of the Code is of general application and that in course of the investigation a <ORG> can issue a warrant in exercise of power thereunder to apprehend, inter alia, a person who is accused of a non-bailable offence and is evading arrest, we need answer the related question as to whether such issuance of warrant can be for his production before the police in aid of investigation. It cannot be gainsaid that a Magistrate plays, not infrequently, a role during investigation, in that, on the prayer of <ORG> he holds a test identification parade, records the confession of an accused or the statement of a witness, or takes or witnesses the taking of specimen handwritings etc. However, in performing such or similar functions the Magistrate does not exercise judicial discretion like while dealing with an accused of a non-bailable offence who is produced before him pursuant to a warrant of arrest issued under Section 73 . On such production, the <ORG> may either release him on bail under Section 439 or authorise his detention in custody (either police or judicial) under Section 167 of the Code. Whether the Magistrate, on being moved by <ORG>, will entertain its prayer for police custody will be at his sole discretion which has to be judicially exercised in accordance with Section 167 (3) of the Code . Since warrant is and can be issued for appearance before the <ORG> only and not before the police and since authorisation for detention in police custody is neither to be given as a matter of course nor on the mere asking of the police, but only after exercise of judicial discretion based on materials placed before him, Mr. <NAME> was not absolutely right in his submission that warrant of arrest under Section 73 of the Code could be issued by the <ORG> solely for the production of the accused before the police in aid of investigation.

On the conclusions as above we allow these appeals, set aside the impugned order and direct <ORG> to dispose of the three miscellanous applications filed by <ORG> in accordance with law and in the light of the observations made herein before.

Before parting with this judgment was place on record our deep appreciation for the valuable assistance rendered by Mr. <NAME> and Mr. <NAME> in deciding the issue involved in these appeals.


JUDGMENT

1. The suit is by the assignee of a widow on a mortgage executed in her favour. On the last occasion, we called for a finding whether the widow had any assignable interest in the debt transferred to the plaintiff. The finding returned is that the widow was competent to assign away the interest that remained due on the date of the assignment and not the principal of the mortgage debt. We accept the finding.

2. Mr. <NAME>, however, raised the question that the claim is barred by limitation. The mortgage is dated the 1st November 1888. It provides for the payment of the principal on the 1st of November 1899 and for annual payment of interest at 6-1/4 per cent. per annum. There is further stipulation in the document which is in these terms: " If I, without paying the interest on the due date and also the principal and interest on the respective due dates according to the aforesaid conditions, allow the same to fall into arrears, I shall pay the principal sum together with interest at 12 per cent. from the date of default till the date of payment without raising the plea of future "instalment on the liability of the mortgage property." We read this clause as entitling the mortgagee to the original rate of interest only, if he does not desire to enforce the clause for enhanced interest, but that should he claim the higher interest on account of the default in the punctual payment of the ordinary rate, he shall be entitled to sue. for the principal sum also without waiting for the due date. In other words, an option is reserved by the clause above referred to, to the mortgagee to anticipate the due date. It is not disputed that the interest was not paid as provided for. The question, therefore, is, is the mortgagee bound to take advantage of the default clause and whether limitation begins to run against him from the date of the first default? Under very similar circumstances two learned Judges of <ORG> held that the cause of action accrued on the date of the first default, whereas <NAME>, J. held that the right to sue did not accrue until the date provided for the payment of the principal arrived. <CITATION> (1915) I.L.R. 37 A. 400. We are inclined to agree with the view taken in the dissenting judgment. The article applicable to the suit is 132 and not 75. There is no warrant for importing into the former, the words of the latter. Can it be said that the money sued for became due when the first default was made if the mortgagee wants only the principal and the original rate of interest? If the claim is for the enhanced interest, it can well be argued that that became due when the first default was committed. When the creditor chooses to exercise the option which limits his claim to the ordinary interest, it would be straining the language of Article 132 , to hold that his right of action accrued when the benefit which he does not choose to avail himself of might have been enforced by him.

3. It is a well settled principle of law that no one is obliged to take advantage of a forfeiture, Section 4 of 3 and 4 William IV Chap. 27. This rule has been applied to cases providing a right of entry on a forfeiture; and it has been held that the landlord should not be compelled to take advantage of the forfeiture clause, so as to make limitation run against him, if he does not choose to avail himself of it: <NAME> v. Earl of Essex (1874) 18 Equity 290. In a later case, Sir <NAME>, M.R. who decided the case just quoted used some very forcible language against the contention to accelerate limitation. In <ORG> v. <NAME> (1876) W.N. Reported in 5 Ch. D. 175 the learned Master of the Rolls says : " The mere statement of such a proposition was shocking to one's intellectual perception when one considered for what objects the Statute of Elizabeth was cnacted." It was also pointed out that a benefit secured to the creditor should not be availed of by the debtor when the former does not want it. No doubt, in the cases of <NAME> v. <NAME> (1891) Q.B. 509 and <NAME> v. <NAME> (1843) 4 Q.B. 519 : 114 Eng. Rep. 994 a different view was taken. Lord <NAME>, C.J. says in the latter case: " If he chose to wait till all the instalments became due, no doubt he might do so; but that which was optional on the part of the plaintiff would not affect the right of the defendant, who might well consider the action as accruing from the time that the plaintiff had a right to maintain it." The Statute of Limitations runs from the time the plaintiff might have brought his action, unless he was subject to any of the disabilities specified in the statute; and, as the plaintiff might have brought his action upon the first default, if he did not choose to enter up judgment, we think that the defendant is entitled to the verdict upon the plea of the Statute of Limitations." It is most probable that the language of Article 75 of the Limitation Act was borrowed from this judgment. Banning on Limitation points out that this decision does not consider the principle that no one ought to be forced to take advantage of a forfeiture. Whatever may be the effect of the learned Chief Justice's view regarding the construction of Article 75 of the Limitation Act , we see no reason for not giving the language of Article 132 its plain and natural significance. As pointed out by <NAME>, <ORG> in <NAME> v. <NAME> (1875) I.L.R. 1 C. 163 seem to indicate that the creditor is not compellable to take advantage of a defeasance clause.

4. There have been numerous cases under Article 75. We are not concerned with them. There are two cases in this Court dealing with Article 132.  <CITATION> (1896) I.L.R. 20 M. 245 : 7 M.L.J. 222 the default clause did not reserve any option to the mortgagee. On the other hand in <CITATION> (1898) I.L.R. 22 M. 20 when the mortgagee was given the option of claiming the whole amount " when he required it", the learned Judges held that the cause of action did not accrue on the date of the first default.

5. The case of <CITATION> (1896) I.L.R. 24 Cal. 281 follows Hemp v. <NAME> (1871) 4 Q.B. 519. In all the above cases, it seems to have been taken for granted that the words of Article 75 should be imported into Article 132. We are of opinion that it would not be in consonance with the ordinary rules of interpretation of statutes to regard a specific provision in one of the articles of an Act as containing a general rule of law applicable to claims under other articles. We think the proper view is to limit the restrictive period to the particular claim provided for and to construe the language of the other articles in their natural sense. Our conclusion is that the claim is not barred by limitation and that the plaintiff is entitled to recover the sum of Rs. 150-0-0 which represents the interest due on the mortgage at 6-1/4%. The decrees of the Courts below must be reversed and a decree should be given to the plaintiff for Rs. 150 with further interest thereon at 6 per cent. per annum from the date of the plaint. The parties will pay and receive proportionate costs.


PETITIONER: <NAME> Vs. RESPONDENT: THE UNION OF INDIA & ORS. DATE OF JUDGMENT02/12/1994 BENCH: <NAME> (J) BENCH: <NAME> (J) HANSARIA B.L. (J) MAJMUDAR S.B. (J) CITATION: 1995 AIR 1151 1995 SCC (1) 400 JT 1995 (1) 454 1994 SCALE (5)72 ACT: HEADNOTE: JUDGMENT:

ORDER

1. The challenge to the validity of Section 5(6) of the Administrative Tribunals Act, 1985 (the 'Act') has unmasked greater issues, to examine which we have come to the conclusion that the judgment of this Court in <CITATION> , 1987 (1) SCC 124, which is by a Constitution Bench of five learned Judges, needs to be reconsidered by a larger Bench. Our reasons follow.

2. The Constitution (Forty-second Amendment) Act, 1976 inserted Part XIV-A in the Constitution which contains Ar-

ticles 323-A and 323-B. These Articles conceive of setting up of various tribunals as adjudicatory bodies. They, inter alia, contain provisions which enable, not only the <ORG> but even State <ORG>, to exclude the jurisdiction of all courts except that of this <ORG> under Article 136 with respect to matters falling within the jurisdiction of the concerned tribunals. The Act came to be enacted by the <ORG> in exercise of the power conferred on it by Article 323-A of the Constitution. The vires of the Act was challenged before this <ORG> which was upheld in <NAME> case.

3. While upholding the validity of Section 28 of the Act in <NAME> case this Court took the view that the power of judicial review need not always be exercised by regular courts and the same can be exercised by an equally efficacious alternative mechanism. Apart from making suggestions relating to the eligibility etc. of the persons who could be appointed as Chairman, Vice-Chairmen. or Members of the <ORG> this Court stated that every bench of the <ORG> should consist of one Judicial Member and one Administrative, Member.

4. The primary reason, according to us, for having a fresh-look at the issues involved in <NAME> case is the observations of the Bench therein by which the tribunals have been equated with <ORG>. A two-Judge Bench of this Court in <CITATION> , AIR. 1987 SC 357 relying upon <NAME> has held that the Tribunals have the jurisdiction, power and authority even to adjudicate upon questions pertaining to the constitutional validity or otherwise of a rule framed, by the President of India under the proviso to Article 309 of the Constitution. They can even adjudicate on the vires of the Acts of Parliament and State Legislatures. Section 5(6) of the Act gives this power, if the Chairman of the tribunal so desires, even to a single Administrative Member. It is a different matter that no Chairman would like to do so; but that has no relevance while examining the validity of the sub-section which reads as below:-

"Notwitstanding anything contained in the foregoing provisions of this section, it shall be competent for the Chairman or any other Member authorised by the Chairman in this behalf to function as a Bench consisting of a single Member and exercise the jurisdiction, powers and authority of the <ORG> in respect of such classes of cases or such matters pertaining to such classes of cases as the Chairman may be general or special order specify:

Provided that if at any stage of the hearing of any such case or matter it appears to the Chairman or such Member that the case or matter is of such a nature that it ought to be heard by a Bench consisting of two Members the case or matter may be transferred by the Chairman or, as the case may be, referred to him far transfer to, such Bench as the Chairman may deem fit."

5. <CITATION> , 1991 (1) SCC 18 1, a two-Judge Bench of this Court held that the Administrative Member of <ORG> alone is not competent to hear and decide a case. This view was taken after referring to what has been pointed out in <NAME> case requiring bench of the <ORG> to consist of one Judicial Member and one Administrative Member following which observation, the Act was amended to say so, vide its Section 5(2) as substituted by Act 19 of 1986. The attention of the Bench deciding <NAME> case, however, was not invited to Section 5(6) .

6. The aforesaid point came to be examined again; and this time by a three Judge Bench in <CITATION> , 1994 (2) SCC 410. (The judgment was, however, rendered on May 3, 1991). When the attention of this Bench was drawn to Section 5(6) of the Act, it opined that any matter involving questions of law or interpretation of constitutional provision should be assigned to a two-Member Bench and parties can request the single Member to refer the matter to a larger bench of two Members and such request should ordinarily be accepted. In pursuant to these observations an order was passed by the Chairman of <ORG> on December 18, 1991 which is in consonance with the same. It deserves notice that in <NAME> case there was no challenge to the validity of subsection (6), but the same has been assailed here.

7. <NAME>, in assailing the validity of sub- section (6), has raised larger issues before us one of which relate to the view taken in <NAME> case that judicial power need not always be exercised by regular courts. According to the learned counsel, this is contrary to the dicta laid down even in <CITATION> , AIR 1973 SC 1461. Indeed, this is the view which has been taken recently by a Full Bench of Andhra Pradesh High Court in <CITATION> , 1994 (1) APLJ 1. For the sake of completeness it may be mentioned that the decision in Sakinala has been assailed before this Court in C.A. No. 169/94 which has been referred to a Constitution Bench.

8. Another facet of the case focused by <NAME> relates to the equality of status between the <ORG>s and <ORG>. A note discordant to that of <NAME> was struck in this regard by a three-Judge Bench of this Court in <CITATION> , AIR 1990 SC 2263, holding that Administrative <ORG>s cannot be equated with <ORG> in all respect and they are not deemed <ORG>s, because of which Members of <ORG>s cannot claim equality with <ORG> Judges as regards pay and age of superannuation. Mention may also be made about the view taken by this Court in <CITATION> . 2129/91 disposed of on 1.10.91) that a <ORG> established under the Act is nonetheless a tribunal and it cannot side-track a decision of the concerned <ORG>.

9. It would not be out of place to refer to a three-Judge Bench decision of this Court in <CITATION> , 1993 (4) SCC 119, in which need for the Members of the <ORG> (which was <ORG> in that case set up with the aid of Article 323-B but what was stated therein would apply proprio vigore to the <ORG> at hand) having adequate legal expertise, judicial experience and legal training was emphasised to enable the <ORG> to become effective alternative. institutional mechanism and to dispense with <ORG> power of judicial review. <NAME>, J., however, opined that such tribunals being creature of statues can in no case claim the status of <ORG> or parity or as substitutes.

10. The aforesaid <NAME> cases do require in our considered view, a fresh look by a larger-Bench over all the issues adjudicated by this Court in <NAME> case including the quest ion whether the <ORG> can at all have an Administrative Member on its Bench, if it were to have the power of even deciding constitutional validity of a statute or 309 Rule, as conceded in <NAME>'s case (supra). Examination of this aspect would be necessary to instill confidence in the minds of people (and litigants) which is the greatest prop of the judiciary.

11. Let the records be placed before Hon'ble the Chief Justice of India for constitution of an appropriate Bench.


PETITIONER: <NAME> Vs. RESPONDENT: RAM PRATAP DATE OF JUDGMENT: 28/08/1964 BENCH: <NAME>, K. BENCH: <NAME>, K. <NAME>, M. CITATION: 1965 AIR 677 1965 SCR (1) 175 CITATOR INFO : RF 1967 SC 808 (17) R 1969 SC 677 (11) RF 1969 SC1201 (36,42) D 1970 SC1231 (13) R 1970 SC1841 (5) R 1971 SC1262 (19) R 1971 SC1943 (10) RF 1975 SC2299 (471) ACT: The Representation of the People Act , ss. 82(b) , 85 and 123(4) -Who are necessary parties to election petition-Allegations on 'personal character-What are- "Calculated", meaning of. HEADNOTE: The election of the appellant to a seat in <ORG> of "the State was challenged by the respondent, an elector, on the ground inter alia, that by publishing a poster which contained a statement of fact about the personal character and conduct of one of the rival candidates, the, appellant was guilty of a corrupt practice under s. 123 (4) of the Representation of the People Act . The <ORG> dismissed the petition, but <ORG> reversed the decision of the <ORG>. In the appeal to <ORG>., it was contended that : (i) the poster, published and circulated by the appellant was not hit by the provisions of s. 123(4) the Act and (ii) the election petition should have been dismissed under 85 of the Act on the ground that another candidate against whom allegation of corrupt practices were made was not impleaded. HELD : (i) Section 123(4) is designed to achieve the dual purpose of protecting freedom of speech and prevention of malicious attack on the personal character and conduct of rivals. A statement which reflects on the mental or moral character of a person is a reflection on his personal character, whereas any criticism of a person's political or public activities and policies is outside it. The sub- section also requires that the candidate making the statement believes it to be false or does 'not believe it to be true, and it shall be a statement reasonably calculated to prejudice the prospects of the election of the candidate against whom it is made. The word "calculated" means designed it denotes more than mere likelihood and imports a design to affect voters. Applying these tests and on a consideration Of the entire evidence,-the appellant by publishing the poster was guilty of a corrupt practice within the meaning of the sub-section. [178A-E; 18OC-E; 183H]. <NAME> V. M. C. Anjaneya Reddy, (1960) 22 E.L.R. 261 and <CITATION> ,  Supp. 3 S.C.R. 114, referred to. (ii)As regards the candidate who was not impleaded the only allegation made in the election petition was that the appellant got the poster published through him and others, but there was no allegation that the candidate believed the statement to be, false or did not believe it to be &W. in the absence of any such averment it cannot be said that there wall anY allegation of any corrupt practice within the meaning of s. 82(b) Of Act against such candidate. Also, under s. 123 (4) mens rea is -a necessary ingredient of the corrupt practice and the person who publishes a statement, whether he is the author of it or not, does not commit a corrupt practice, unless he has the requisite knowledge. As there was no allegation of corrupt practice against the candidate who was not impleaded, the penal provision of s. 85 are not attracted and the petition was not liable to be dismissed. [184E-H; 185A]. JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 558 of 1964.

Appeal by special leave from the judgment and order dated December 16, 1963 of <ORG> in D. B. Election Appeal No. 74 of 1963.

<NAME>, <NAME>, <NAME> and <NAME>,for the appellant.

<NAME> and <NAME>, for the respondent. The Judgment of the Court was delivered by <NAME> The appellant, <NAME>, and two others, namely <NAME> and <NAME>, contested the election for a seat in <ORG> from Hanumangarh constituency. The appellant polled, 1,285 votes <NAME>, 18,217 and <NAME>, 1,285 votes. The appellant was declared elected. The respondent, One of the' electors, filed an election petition under S. 8  1 of the Representation of the People Act, 1951, hereinafter called the Act, for setting aside the election of the appellant on various grounds. <ORG> by its order dated June 18. 1963, held that the respondent had failed to substantiate the allegations made against the appellant and, on that finding, dismissed the petition. Against the said order, the respondent preferred an appeal to <ORG> for Rajasthan at Jodhpur. <ORG> of that Court heard the appeal and came to the, conclusion that the appellant was guilty of a corrupt practice under sub-s. (4) of s. 123 of the Act in publishing a poster, Ex. 3, which contained a statement of fact about the personal character and conduct Of <NAME>, one of the candidates in the election. On that finding, it set aside the order of <ORG> and declared the election of the appellant void. The appellant, by special leave, has preferred this appeal to this Court against the said order of <ORG>.

In Learned counsel for the appellant raised before us two points, namely, (i) that Ex. 3, the poster, published and circulated by 'the appellant is not hit by the provisions of S. 123 (4) of the Act and (ii) that the election petition should have been dismissed d under s. 85 of the Act on the ground that it had not impeded <NAME>, another duly nominated candidate who withdrew his candidature before the election and against whom allegations of corrupt practice were made.

The first argument of the learned counsel is elaborated thus. Under S. 123(4) of the Act the burden is upon the person who; is to impute corrupt practice described thereunder to establish the ingredients of corrupt Practice laid down therein. He has not only to prove that the elected candidate published a statement of fact, which is false, in relation to the personal character or conduct of another candidate, but also that he believed it to be false or he did not believe it to be true. He has to prove further that the said statement was calculated to prejudice the prospects of the other candidate's election, that is to say that the voters had the knowledge that the corrupt practice or practices were attri- buted to him and because of that knowledge did not vote for him. In the instant case, Ex. 3 contained only general allegations against the misrule of <ORG> and even if the statements can be related to <NAME>, there is no evidence that the voters knew that it was he who was referred to in the poster.

The first question is whether Ex. 3 is hit by the provisions of s. 123(4) of the Act. Before we consider the terms of the document it will be convenient and useful to notice the ingredients of the section. It reads Section 123 (4) : The publication by a candidate or his agent or by another person, with the consent of a candidate or his election agent, of any statement of fact which is false, and which he either believes to be false or does not believe to be true, in relation to the personal character or conduct of any candidate, or in relation to the candidature, or withdrawal, of any candidate, being a statement reasonably calculated to prejudice the prospects of that candidate's election.

The sub-section may be dissected into the following component parts relevant to the present enquiry: (1) the publication of any statement of fact by a candidate; (2) that fact is false; (3) the candidate believes it to be false or does not believe it to be true; (4) the statement is in relation to the personal character or conduct of the candidate; and (5) the said statement is one being reasonably calculated to prejudice the prospects of the other candidate's election.

An election is the expression of a popular will. It shall be so conducted that the popular will shall be reflected on the basis of the policy of the party which the candidate represents and on big merits. That object cannot be achieved unless freedom of speech t assured at the election and the merits and demerits of a candidate, personal as well as political, are prominently brought to the notice of the voters in the constituency. At the same time it shall not be allowed to degenerate into a vilification campaign aimed at bringing down the personal character or conduct etc. of the candidates without any basis whatsoever. The subsection is designed to achieve this dual purpose, namely, freedom Of speech and prevention of malicious attack on personal character 'Dr conduct etc. of rivals. The purity of an election is sought to be maintained without affecting the freedom of expression. The sub-section prohibits any statement of fact in relation to Personal which is not only false but character or conduct of any candidate, which is not only false but also the candidate making it either believes it to be false or does not believe it to be true- it implies that a statement of fact relating to the personal character or conduct etc. of a candidate can be made, if it is true. Even if it is false, the candidate making it is protected, unless he makes it believing it to be false or not believing it to be true, that is to say statements which are not true made bona fide are also outside the ambit of the provision. To be' within the mischief of sub-s. (4) of S. 123 of the Act such a statement shall satisfy another test, namely, it shall be a statement, reasonably calculated to prejudice the prospects of the election Of the candidate against whom it is made. The word "calculated" r means designed: it denotes more than mere likelihood and imports a design to affect voters. It connotes a subjective element, though the actual effect of the statement on the electoral mind reflected in the result may afford a basis to ascertain whether the said statement was reasonably calculated to achieve that effect. The emphasis is on the calculated effect, not on the actual result, though the latter proves the former. But what is important to notice is that it is not necessary to establish by positive evidence that. the voters, with the knowledge of the contents of the statement, were deflected from voting for the candidate against Whom the statement was made.

As considerable stress is laid upon the burden of proof, reference may be made to the judgment of this Court in <NAME> v. <NAME>("). In that case, dealing with the question of burden of proof, this Court observed:

"Burden of proof has two distinct meanings, viz., (i) the burden of proof as a matter of law and pleading, and (ii) the burden of proof as a matter of adducing evidence........... The first remain-, constant and the second shifts."

The burden of proof as a matter of law and as a matter of adducing evidence is on the respondent, who seeks to get the election set aside, to establish corrupt practice; but, if he adduces sufficient evidence, as in this case we are satisfied he has, the burden of (1) (1960) 22 E.L.R. 261, 268.

adducing evidence shifts on to the appellant. That apart when the entire evidence has been adduced in the case the question of burden of proof becomes merely academical. In this case <ORG> considered the relevant evidence and came to the conclusion that the respondent has proved his case. No error has been committed by <ORG> in this regard.

One of the important ingredients of the sub-section is that the statement shall be made in relation to the personal character or conduct etc. of another candidate. What is the meaning of the expression "personal character or conduct" ? This question has been considered by this Court in two decisions. In <NAME> case (1), dealing with the said expression, this Court observed at p. 266 thus:

"The words 'personal character or conduct' are so clear that they do not require further elucidation or definition. The character of a person may ordinarily be equated with his mental or moral nature. Conduct connotes a person's actions or behaviour........ What is more damaging to a person's character and conduct than to state that he instigated a murder and that he was guilty of violent acts in his political' career in <CITATION> (2), this <ORG> again, adverting to this aspect, observed thus:

"In discussing the distinction between the private character and the public character, sometimes reference is made to the "man beneath the politician" and it is said that if a statement of fact affects the man beneath the politician it touches private character and if it affects the politician, it does not touch his private character."

After referring to obvious statements which affect the private character of a person, this Court proceeded to state "But there may be cases on the border-line where the false statement may affect both the politician and the man beneath the politician and it is precisely in dealing with cases on the border-line that difficulties are experienced in determining whether the impugned false statement constitutes a corrupt practice or not."

It is not necessary to refer to other decisions cited at the Bar.

(1)[1960] 22 E.L.R 261. (2) [1963] Supp. 3 S.C.R. 114,122.

The boundary between personal character and conduct and public character and conduct is well drawn, though, sometimes, it is thin. Sometimes a statement may appear to touch both the candidate's personal as well as Public character. But a deeper scrutiny enables a court to ascertain whether there is a reflection on his personal character or on his public character. To illustrate: suppose a statement is made to the effect that a minister has taken a bribe in making an appointment or in giving a contract. He, has taken the bribe in the course of discharging his duties as a minister, but his act of taking bribe does not solely reflect on his public character. By taking a bribe he does not discharge his Official duties; taking a bribe has nothing to do with his official or public duty- it reflects on his moral and mental fire. His position as a minister may have given him the opportunity to take a bribe but the taking of the bribe is mainly attributable to his deficiency in personal character. We, therefore, hold that any statement made, which reflects on the mental or moral character of a person is a reflection on his personal character, whereas any criticism of a person's political or -public activities and policies is outside it. The fact such a statement is made in the course of a political or public activity does not make it any the less a statement in relation to his personal character or conduct. It is a question of fact in each case under what category a particular statement falls.

Now let us have a look at the terms of Ex. 3. It is a big poster in which some portions have been printed in bold letters. There is a large size photo of the appellant on the right top corner and the symbol of <ORG> at the end. The poster runs thus:

"Bounties of the Cement of the Rajasthan Canal.--

Cinema of seven lakhs in Ganganagar and magnificent kothis in the neighbourhood of Jaipur's "Rajmahals".

Open loot in liquor contracts by <NAME>'s devotees and improper transfer of lands. <NAME>'s gentlemanliness, honest and public welfare faced with the corrupt, permit- loving and "police-raj" of the <ORG>.

Give proof of bravery, modesty and selflessness by giving vote to <NAME> who would bravely sacrifice himself for the glory and prestige of <ORG>. Election (Ears of com and sickle) Symbol Vote for ears of corn and sickle, the symbol of prosperity,progress and popular rule."

Learned counsel for the appellant contends that the poster does not overstep the limits of reasonable criticism of the opposite candidate and that it says only generally that under the <ORG> rule many corrupt practices are going unheeded and that if the appellant is elected he would rectify the defects and restore the glory and prestige of Hanumangarh. It is not necessary in this case to ascertain whether all the misdeeds narrated in the poster refer to <NAME>, for we are satisfied that the first paragraph clearly and reasonably refers to his activities. The vernacular word for "bounties' is "barkatain". The first paragraph of the poster means that the cinema theatre of Rs. 7 lakhs in Gangangar was the barkat of the cement of the Rajasthan canal. That means by misappropriating the cement of the Rajasthan Canal the cinema theatre worth Rs. 7 lakhs was built. Ex facie the poster does not say who misappropriated the cement and to whom the cinema belonged. But the words in the context of the well-known facts can reasonably lead only to one inference. At the crucial time, <NAME> was the Minister-in-charge of <ORG>. During the election at Ganganagar a cinema theatre known as Adarsh Theatre was being put up. It is admitted by the appellant and his agent that the theatre referred to in the poster is <ORG> and it belongs to <NAME> and his sons. In the context, therefore, it is manifest that the poster meant to convey the idea that <NAME> misappropriated the cement of the Rajasthan Canal, of which he was in charge, and built a big theatre in the name of his sons. That is to say the act of misappropriation was in clear terms attributed to <NAME>. To make a statement that a minister has misappropriated the cement in his charge and built a theatre from out of the proceeds is certainly a reflection on his personal character and conduct. Learned counsel's contention that it may mean that somebody other than the Minister might have misappropriated the cement and sold it in the black market and that the Ganganagar cinema theatre might have been built from and out of the cement purchased therefrom. This is rather an unnatural rendering of the clear recitals in the first paragraph of the poster. The word "barkatain" shows that Rs. 7 lakhs was derived from the cement for the canal. If the minister or his sons purchased cement in the blackmarket, the building cannot be the bounty of the cement of the Rajasthan Canal. In that event only the cement misappropriated by somebody would have been used for building the cinema. The cost of building the theatre would have been borne by the minister and his sons not out of the gift made from the cement of the Rajasthan Canal. We are, therefore, clearly of the opinion that the first paragraph of the poster is a direct reflection on the personal character of <NAME>.

Even so, learned counsel for the appellant argues that it has not been established that the appellant made the statement believing it to be false or not believing it to be true. P.W. 4, Dharam Pal, under whose supervision the cinema theatre was built, stated that 4,000 bags of cement were used in its construction and that 2,000 of these bags were obtained from the cement factory of Sawai Madhopur, 1,585 bags from the cement factory at Charkhidadri and the remaining 415 bags were purchased locally against permits issued by the department concerned. This evidence has been accepted by <ORG>. On the other hand,not only the appellant did not adduce any evidence to rebut the evidence adduced by the respondent but the appellant as well as his witness, <NAME>, admitted in the witness-box that <NAME> was an honest man. In this state of evidence, the respondent, on whom the burden of proof lay, discharged that burden and <ORG> rightly found in his favour. The next facet of the argument is that there is no evidence in the case that the said statement was one reasonably calculated to prejudice the prospects of the election of <NAME>. It is asked, how could the statement deflect the voters from voting in favour of the said <NAME>, if they did not know that the cinema theatre that was being built in Ganganagar belonged to <NAME> or his sons It is further said that there is no evidence in this case that all or any of the voters knew the fact that the cinema theatre belonged to <NAME> or his sons. Reliance is placed upon the decisions delivered in the context of libel actions. In <NAME> v. <ORG>) Lord Halsbury, L.C., accepted the principle that the questioned document should be taken in a defamatory sense by those to whom it was published according to the primary meaning of the language used in it. In <ORG> v. <ORG>) for the purpose of ascertaining whether a statement was defamatory the test whether the circumstances in which the writing was published, reasonable men, to whom the publication was made, would be likely to understand (1) L.R. [1897] A.C. 68.

(2) L.R. (1882) 7 A.C. 741.

it in a libellous sense. In that case <ORG> came to the conclusion that it did not. This test is relied upon in support of the argument that the voters should have known that the first paragraph of the poster referred to <NAME>, for without such knowledge, it could not have prejudiciously affected <NAME>'s chances in the election. We are not dealing with a libel action. We do not, therefore, propose to refer to similar cases on libel cited at the <ORG>. We do not express any opinion thereon. We are only concerned with the express terms of s. 123(4) of the Act. The only question, therefore, is whether the said statement was reasonably calculated to prejudice the prospects of <NAME>'s election. On behalf of the appellant it was not contended either before <ORG> or before <ORG> that the voters had no knowledge, of the fact that the cinema theatre at Ganganagar belonged to <NAME> or his sons. That apart, as we have pointed out earlier, the object with which the statement was made is the crucial test. Here it is established that Ganganagar cinema theatre belonged to <NAME>'s sons. It is proved that <NAME> was the minister-in-charge of the Rajasthan Canal. He was the only effective candidate against the appellant. The appellant's intention in making that statement was therefore obvious and that was to attack the personal character of <NAME> in order to prejudice his prospects in the election. He must have reasonably calculated that the voters, or at any rate the voters in and about the locality where the cinema theatre was being put up, had knowledge of the fact that it was being constructed by the minister or his sons. It cannot also be said that when a big cinema theatre at a cost of Rs. 7 lakhs was being put up in Ganganagar, the voters in and about that place would not have known about the ownership of that building. The fact that the building was brought in for attacking" the personal character of <NAME>, a rival candidate, clearly indicates that the appellant knew that the voters had knowledge of its ownership and expected that it would create the impression which it manifestly intended to convey. On these facts, if <ORG> held that the statement was reasonably calculated to prejudice the rival candidate's prospects in election, we cannot say that the finding is not supported by evidence or admitted facts placed before <ORG>. It was a reasonable inference from the facts found by <ORG>. We, therefore hold that Ex. 3 is hit by s. 123 (4) of the Act and, therefore, <ORG> rightly held that the appellant was guilty of corrupt practice.

To appreciate the second contention some facts may be recapitulated. <NAME>, the father of the appellant, was one Of the candidates who stood for the election. His nomination paper was held to be valid. But, later on, he withdrew his candidature. In the election petition it was stated that the appellant got printed from <ORG>, Sri Ganganagar, hundreds and thousands of posters and leaflets containing grossly libellous and highly defamatory imputations against <NAME> and that the appellant himself and through his workers and supporters got them published by affixing them at conspicuous places in every village of the constituency and freely distributed them among the electors. In one of the annexures the names of the distributor of the posters and leaflets are given as <NAME>, the appellant, and his father, <NAME>, among others. But there is no allegation that <NAME> published the statement believing it to be false or not believing it to be true.

Under S. 82 of the Act a petitioner shall join as respondent to his petition any other candidate against whom allegations of any corrupt practice are made in the petition. Under s. 85 of the Act, "if the provisions of...... S. 82 have not been complied with, <ORG> shall dismiss the petition". Assuming that <NAME> was a candidate within the meaning of s. 82 of the Act, the question is whether allegations of any corrupt practice were made against him in the petition. The only allegation made was that the appellant got published through him and others the said statement; but there was no allegation that <NAME> believed the statement to be false or did not believe it to be true. In the absence of any such averment, it cannot be held that there was any allegation of any corrupt practice within the meaning of S. 8  2 (b) of the Act against <NAME>. In that event, as there was no allegation of a corrupt practice against <NAME>, the penal provisions of s. 85 are not attracted. In this context a novel argument has been advanced before us. Publication with guilty knowledge under s. 123 ( 4) of the Act, the argument proceeds, is a composite act and it involves two elements, namely, (i) the statement of fact, and (ii) its publication; and, therefore, all persons who take part in one or other of the said elements will be guilty of the corrupt practice, even though some of them have and others do not have the guilty knowledge. If this argument be accepted, not only the person who makes a false statement of fact and gets it published through his servant, but his innocent servant who mechanically obeys the order of his master would be guilty of a corrupt practice. This contention is obviously untenable.

Under s. 123 (4) of the Act mens rea is a necessary ingredient of the corrupt practice and the person who publishes a statement, whether he is the author of it or not, does not commit a corrupt practice, unless he has the requisite knowledge. The sub-section does not accept the doctrine of constructive knowledge. <ORG> has correctly held that the petition was not liable to be dismissed on the ground that <NAME> was not included as respondent.

In the result, the appeal fails and is dismissed with costs. Appeal dismissed.