TMI Blog1955 (11) TMI 41X X X X Extracts X X X X X X X X Extracts X X X X ..... istrate. Schedule II contains the form of nomination paper to be used, with the terms in which the declaration is to be made by the candidate and verified by the Magistrate. On 5-11-1951 the appellant signed two nomination papers each containing the following declaration : I hereby declare that I am a member of the Balmiki Caste which has been declared to be a Scheduled Caste in the State of Punjab . 2. The Balmiki Caste is one of the castes declared to be a Scheduled Caste under the Constitution (Scheduled Castes) Order, 1950 . The above declaration was made on solemn affirmation before the First Class Magistrate, Karnal, and the nomination papers with the above declaration were filed before the District Magistrate, Karnal, who was the returning officer. One Jai Ram Sarup, a member of the Chamar caste, which is one of the Scheduled Castes, was also a candidate for the seat, and he raised the objection that the appellant was not a Balmiki by caste, and that he was therefore not qualified to stand for election to the reserved Constituency. Acting on the declaration aforesaid, the returning officer overruled the objection, and accepted the nomination paper of the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce, and accordingly dismissed the revision. It is against this order that the present appeal by special leave is directed. 6. On behalf of the appellant Mr. N. C. Chatterjee argues that having held that the order of the returning officer was appealable, the learned Judge ought to have remanded the case for hearing by the Sessions Judge on the merits, and that his own disposal of the matter was summary and perfunctory. The contention of Mr. Gopal Singh for the respondent is that the view of the Sessions Judge that the returning officer was not a court and that his order was not, therefore, appealable was correct, and that further the order of the High Court in revision declining to interfere on the merits was not liable to be questioned special appeal in this Court. 7. The first question that arises for our decision is whether the order of the District Magistrate passed on 17-9-1952 as returning officer is open to appeal. The statutory provisions bearing on this point are sections 195, 476 and 476-B of the Code of Criminal Procedure. Section 195(1)(a) provides that no court shall take cognizance of any offence punishable under sections 172 to 188 of the Indian Penal Code excep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nctions of the returning officer and the nature and the extent of his powers. 8. There has been much difference of opinion as to the precise character of the office of a returning officer, viz., as to whether he is a judicial or ministerial officer , says Parker on Election Agent and Returning Officer, Fifth Edition, page 30. The true view, according to him, is that he partakes of both characters, and that in determining objections to nomination papers, he is a judicial officer. That is also the view taken in Indian decisions. But before we can hold that the proceedings before a returning officer resulting in the acceptance or rejection of a nomination paper fall within section 195(1)(b) of the Code of Criminal Procedure, it must be shown not merely that they are judicial in character but that further he is acting as a Court in respect thereof. It is a familiar feature of modern legislation to set up bodies and tribunals, and entrust to them work of a judicial character, but they are not Courts in the accepted sense of that term, though they may possess, as observed by Lord Sankey, L. C. in Shell Company of Australia v. Federal Commissioner of Taxation [1931] A.C. 275, some ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing evidence which they may desire to adduce in support of their case. There is no machinery provided for summoning of witnesses, or of compelling production of documents in an enquiry under section 36. The returning officer is entitled to act suo motu in the matter. When one compares this procedure with that prescribed for trial of election petitions by the Election Tribunal under sections 90 and 92 of the Act, the difference between the two becomes marked. While the proceedings before the Election Tribunal approximate in all essential matters to proceedings in civil courts, the proceedings under section 36 present a different picture. There is no lis, in which persons with opposing claims are entitled to have their rights adjudicated in a judicial manner, but an enquiry such as is usually conducted by an ad hoc tribunal entrusted with a quasi-judicial power. In other words, the function of the returning officer acting under section 36 in judicial in character, but he is not to act judicially in discharging it. We are of opinion that the returning officer deciding on the validity of a nomination paper is not a Court for the purpose of section 195(1)(b) of the Code of Criminal Proc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 17-9-1952 was without jurisdiction. 12. It was finally contended that the Magistrate was under a misapprehension in stating that the appellant had declared that he was born a Balmiki, whereas, in fact, he only declared that he was a Balmiki by caste. But it was the appellant himself who pleaded in his counter-affidavit that he was not a Muslim by birth, and was born in a Balmiki Hindu family, and the observation of the Magistrate has obvious reference to what was pleaded and argued by the appellant. And it should also be noted that no objection was taken either in the grounds of appeal to the Sessions Court or in revision to the High Court with reference to the above remark. Moreover, the charge as laid in the complaint is that the declaration of the appellant in the nomination paper that he was a member of the Balmiki caste was false. There is accordingly no substance in this contention. 13. It must be emphasised that in the view that the order of the Magistrate dated 17-9-1952 was final, this appeal being really directed against that order there must be exceptional grounds before we can interfere with it in special appeal, and none such has been established. On the o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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