Durgapada Das vs Keshab Chandra Bose

S.K. Datta, J.—This Rule was issued suo moto by the Court on the basis of the news items in the daily newspapers--Statesman, Hindusthan Standard, Ananda Bazar Patrika and Jana-Sebak, all of February 20, 1966, when Mr. J.C. Moitra brought to my notice the aforesaid publications. These newspapers, all published expressly or impliedly that 309 members cast their votes. Professor Rezaul Karim polled 298 votes and his opponent Surendra Nath Sarkar got 10 votes and that one vote was rejected. These figures are in afford with the minutes kept by the returning officer.

The sources of information were also indicated in the newspapers. In the Statesman the reporter reported, as it appears from the news item, that

the W.B.P.C.C. Secretary later said that his committee was not declaring the result of the election. It was only giving the voting figures.

In the Hindusthan Standard the sources of information appeared to be ''sources close to both the candidates''. In Ananda Bazar Patrika sources were again ''sources close to both the candidates''. In Jana-Sebak the sources were persons present at the time of counting. In these circumstances several Rules were issued including the Rule against the returning officer Mr. Bose.

It is clear that the order dated February 18, 1966, was served on the returning officer. The interim order as served was:

polling for election will take place on 19.2.66 in accordance with notice dated 8th February, 1966, under the supervision of the Pradesh Returning Officer Mr. Keshab Chandra Bose and the votes cast may be counted in the usual way. The Defendants are restrained by an injunction from declaring the result of such polling or giving effect to such result till further order of the Court. Liberty to serve the Respondents Nos. 5 and 8 by registered post by Air Mail. Returnable next Friday, i.e., 25.2.1966.

The first and primary consideration is whether the returning officer disobeyed the said order dated February 18, 1965. If he has not, then the question of deliberate and contumacious violation cannot and does not arise. But if he has, then those questions become pertinent.

The acts of disobedience under the Rule issued against the returning officer is directed against three acts: (i) declaring the results of the polling, (ii) allowing the results of the polling to be declared and (iii) giving effect to the results of the polling.

Mr. Bose said on oath that he did not declare the result of polling to the reporters of the newspapers. The statements in the relative news item in Hindusthan Standard and Jugantar lend support to this statement on oath. The relevant portion in Ananda Bazar Patrika is as follows:

Both polling and counting of votes were over by noon on Saturday. But still the Returning Officer, Sri Keshab Chandra Bose, could not declare the name of the new Pradesh Congress President because the Calcutta High Court had directed that the result should not be declared.

It may be noticed that this statement in Ananda Bazar Patrika is limited to the declaration of the name of the new Pradesh Congress President. But at the same time it will be noticed that it does not state that the results of the voting or that the figures of the votes polled by each candidate were communicated by Mr. Bose to the reporter of Ananda Bazar Patrika. Mr. Bose also said on oath that--

On being asked about the result, I had even expressly told the said reporters and all others, who made such enquiries, that I could not declare or make known the result of the said counting and/or the said polling in view of the Court''s order dated February 18, 1966, hereinbefore mentioned.

He has again said:

I had not at any time whatsoever up till now made known by myself of the result of such counting to any person.

It may be noticed that at the time of giving directions, I indicated that I would be inclined to entertain any affidavit dealing with the affidavit of Mr. Bose, if any member of the public was willing to do so. There was no response to it. Hence, these statements in this affidavit remained unchallenged. Therefore, it cannot be said that the returning officer declared the result of the polling to the reporters of the newspapers or to anyone else. In this connection it may be observed that the declaration of the result of the polling may be according to the restricted meaning of the word ''declaration'' confined to the formal announcement by the returning officer that Mr. Rezaul Karim was the President. But to my mind, even the publication of the voting figures before such formal announcement is made, would be a declaration within the meaning of the order passed by me for, inter alia, the reason that the prohibition was not only against the returning officer but also against all the Defendants. Secondly, on the ground that no one can defeat the order by an indirect process, that is to say, give the voting figures, and then say that ''I have not declared the result.'' In this connection reference may be made to the case of United Telephone Co. v. Dale 25 Ch.D. 778 which I had occasion to deal with in another unreported case, Re Contempt of Court, Kuneles Varma v. Musst. Khaleda Sultana Suit No. 1165 of 1962, Unreported decision. Hence, in my view, in no event it can be said on the materials before me that Mr Bose declared the result of the polling.

The second act of disobedience is: ''and/or allowing the result of the polling to be declared''. The word ''allow'' has, according to the standard dictionaries, several meanings. It may mean ''admit'', ''permit'', ''give leave'', ''sanction'' and even ''praise'', ''commend'', ''provide for'' or ''suffer''. In this connection see Concise Oxford Dictionary and the New English Dictionary, vol. I, p. 239. In the Stroud''s Judicial Dictionary again the meanings have been given as ''permit'', ''to allow'', ''suffer'', ''give leave'', ''not to prevent''. In the case of Massey v. Morris (1894) Q.B. 412 there was occasion to construe this word ''allow''. In that case their Lordships observed that,

to allow a thing to be done or omitted, there must be some direct or indirect sanction of it;--unlike the mere responsibility of an Inkeeper if he ''suffer'' things contrary to the Licensing Acts, an innocent Owner of a Ship does not ''allow'' her ''to be so loaded as to submerge in salt water the centre of the disc, Sections 28, 39 and 40 V.C. 80 by the mere fact that the Master knew of such overloading, even though the Master was appointed by the Owner.

In my opinion the word ''allow'' should be given the ordinary and natural sense in which it is used--in the sense of permission, given leave and sanction. In any event, in my opinion, the word ''allow'' rolls up two elements. It presupposes an express or implied request by one person to another person to do a thing or act and it further presupposes that the ''another person'' acceded to it either expressly or impliedly. To put it differently, it has two components. One person must seek permission either expressly or impliedly and that another person must give the permission either expressly or impliedly.

In this case, so far as this part of the charge or offence is concerned, there is a denial in the affidavit. There is, however, statement in para. 12 to the effect that--

At no time uptil now I have declared the result of such polling or allowed the result of the polling to be declared or given effect to such result. The figures of the counting were known to the respective authorized representatives of the candidates and the said persons who will assist me at the time of voting and counting. The Press representatives and other persons were all waiting outside but nothing was ever communicated to them by me. In my opinion, these statements are dangerously near allowing the results to be declared. But it does not tantamount to allow the results to be declared for it does not appear from the affidavit or the report in the newspapers that the deponent was present when the disclosure was made to the Press representatives either by the sources close to both the candidates or those who were present at the time of counting or by the committee of the West Bengal Pradesh Congress Committee through the Secretary of the committee or otherwise. Again, it cannot be held on the materials before me that the returning officer allowed the results to be declared.

The third act of disobedience is the ''giving effect to the results of the polling''. There is a denial on oath by the returning officer. There is no evidence to the contrary. Hence, on the (materials before me it is not possible to hold that the returning officer is guilty of disobeying this part of the order also. This would have ended the matter but for certain points, particularly three, which were canvassed before me at some length.

Mr. Advocate-General submitted that no question of disobedience of the order or direction of the Court to count the votes in the usual way can and does arise when his client has complied with the said direction as is evident from the uncontradicted statements in the affidavit in answer. In order to support this case of usual way, relience was ultimately placed on Statutes dealing with election and text books dealing with meeting of the companies. In order to appreciate the point it is necessary to set out what according to the returning officer were the more relevant and important steps or components of counting the votes in the usual way. Firstly, the counting should be done by him with the assistance of scrutineers or counting agents appointed with the consent of the candidate and/or their agents. In view of this the returning officer, the candidates and/or their election agents and counting agents or scrutineers can be present at the time of counting and not others. Secondly, the counting does not end with checking and counting by him with the assistance of the scrutineers or counting agents but it extends to rechecking by the representatives of each of the candidates and recounting by them. Thirdly, he has to keep minutes of the results of the polling signed by him and counter-signed by his candidates. Fourthly, the ballot papers should be kept back in the boxes sealed in the presence of the representatives of the candidates and the counting agents.

The provisions of the Statutes dealing with election, to my mind, are more appropriate. So, I deal with them first. In this connection reference was made on behalf of the returning officer to Section 64 of the Representation of the People Act, 1951 (India), on Section 10 of the Presidential and Vice-Presidential Election Act, 1962 (India) and Rules 45 and 46 of the Second Schedule to the Representation of the People Act (England). In the case of Section 64 of the Representation of the People Act, 1951, the persons who are entitled to be present at the counting are the contesting candidates, their election agents and their counting agents and no one else. Section 10 of the Presidential and Vice-Presidential Election Act provides that counting may be done by the Chairman in the presence of the candidates or in the alternative it can be done with the help of counting agents or scrutineers. In the latter case the candidates and the representative of each candidate authorized in writing by the candidate are entitled to be present. Rule 45 of the Representation of the People Act, 1949, on the other hand entitles as of right to be present at the counting--

(a) the returning officer and his clerks,

(b) the candidates and their wives or husbands,

(c) the election agents,

(d) the counting agents.

The returning officer may even under this Rule permit other persons to be present besides those persons who are entitled to be present as of right.

In the case of Section 64 of the Representation of the People Act, 1951, Section 10 of the Presidential and Vice-Presidential Election Act, 1952 and Rule 45 of the Second Schedule to the Representation of People Act, 1949 (England), there is no provision for giving ballot papers to the representatives of the candidates for checking or for their recounting.

In my opinion, what is implied more or less in Section 64 of the Representation of People Act, 1951, and Section 10 of the Presidential and Vice-Presidential Election Act, 1952, is expressly mentioned in Rule 45 of the Second Schedule to the Representation of People Act, 1949, where it provides that--

the Returning Officer shall give the Counting Agents all such reasonable facilities for overseeing the proceedings and all such information with respect thereto as he can give them consistently with the orderly conduct of the proceedings and the discharge of his duties in connection therewith.

There are no provisions in any of those Acts or Rules for keeping the minutes signed by the returning officer and countersigned by the election agents of the candidates It must, however, be observed that the said order did not prevent the returning officer from keeping any record of the result of polling that necessarily implied, that there should be a record by the returning officer of the results of the polling for his own purpose to be kept to himself until the occasion arises for formally announcing the result.

There is no provision again in our Acts for sealing the ballot boxes. There is, however, a specific rule in the Representation of People Act, 1949, for sealing ballot boxes after checking and counting of the votes cast. It is clear from what I have said earlier that the provisions in the several Acts are not uniform. They differ in detail. None of them individually or collectively support all the steps which have been taken by him and, in particular, the keeping of the minute in the manner in which it was done.

Hence, no usual way can be spelled out from these specific statutory provisions placed before me.

In the case of meetings of companies it appears from the text books that there are three possible courses open. Firstly, the Chairman may without the help of any scrutineer count the votes cast and keep it to himself until he declares the result formally. Secondly, the Chairman may with the help of scrutineers declare the results of the polling at the same meeting. (Gore Brown, 41st ed., Joint Stock Companies, p. 429, Palmer''s Company Law, 20th ed., p. 476 and Shackleton on Meetings, 3rd ed., p. 866). The third course is followed where votes are numerous. In such a case the Chairman generally appoints scrutineers to check and count the votes and report to him at an early date the results of the polling. The Chairman in such a case does not take any part in it. He acts on the report of scrutineers. (See Gower, Modern Company Law, 2nd ed., p. 451, Shackleton on Meetings, 3rd ed., p. 60.) Hence, again there is no usual way.

On the first day Mr. J.C. Moitra, amicus curiae, mentioned that there were rules of the West Bengal Pradesh Congress Committee. If there were rules it seemed to me that the rules would be the usual way. Hence, I adjourned and directed that the rules should be produced on the day of the next hearing. This was done by Mr. Advocate-General.

There are two relevant rules, Rule 21 and Rule 23. It is not necessary to set out for our purpose the entire Rule 21 or for that matter the entirety of Rule 23. It is sufficient to set out the relevant portion of Rule 21 which is as follows:

Members of he Pradesh Congress Committee will be elected according to 21(ka) in the following manner:

(gha) The active members of specified area will assemble in a meeting and will elect members of Pradesh Congress Committee on a date and at a place and time specified by the District Returning Officer according to 21(ka) in the manner following:

(1) Votes shall be taken by ballot. Ballot boxes and ballot papers will be there and they will contain the names of different candidates arranged according to the first letter of different names.

(2) Each voter will be given one ballot paper. A cross mark will have to be put in favour of only one candidate at the specified space. At the time of polling different candidates or an agent of each of them can be present at the polling centre.

(3) Members will be elected by a majority of the votes.

(4) Counting of votes will take place after voting is over. The respective candidates or an agent of each of them can remain present at the time of counting of votes.

(5) The District Returning Officer will appoint Polling Officers to conduct the said election. The decision of the said Officer shall be deemed to be final in respect of election matters.

The relevant portion of Rule 23(ka) is as follows:

23(ka) Ordinary members of Pradesh Congress Committee shall form an executive committee of the Pradesh Congress Committee in a meeting held at a place on a date and at a time fixed by the Pradesh Returning Officer. The Pradesh Returning Officer shall convene this meeting. The Pradesh Returning Officer shall preside over the said meeting and his decision in respect of election matters in this meeting shall be deemed to be final.

The following agenda shall be considered in the meeting:

(3) Election by majority of votes by ballot of the members of the executive committee consisting of not more than 30 in number including a President, 3 Vice-Presidents and Treasurer.

There are three possible ways of construction open to me in view of these two rules.

Rule 21 commences with the words,

Members of the Pradesh Congress Committee will be elected according to 21(ka) in the following manner.

There are specific provisions for the election of President, Vice-Presidents and Treasurer in Rule 23(ka). Therefore, it is clear to my mind that Rule 21 cannot be applicable to the election of President. Rule 23(ka), however, only provides that election should be by ballot and that the decision of the returning officer in respect of election matters in this meeting shall be deemed to be final. Therefore, it leaves the matter to the discretion of the returning officer. It may be noticed that here is no specific provision in, Rule 23(ka) regarding counting of votes or for rechecking and recounting or keeping the minute. It may be said that Rule 21 should be imported into Rule 23(ka). In my opinion there is no room for such contention having regard to the language of Rule 21. The two separate and distinct rules provide for different matters though they relate to election.

Under Rule 23(ka) it was open to the returning officer to devise any way of counting, rechecking and recounting unless there was a usual way followed in counting votes in the election of the President and more particularly in view of the said order. The returning officer Mr. Bose has said on oath that there is a usual way. Hence, we are thrown back to the question what was the usual way of counting votes in the case of election of President, that is to say, we are thrown back to the affidavit of Mr. Bose. Therefore, unless the affidavit itself shows that there is a departure from the usual way no finding adverse to the returning officer on the point can be arrived at.

At the outset it must be said, in my opinion, that the affidavit is not satisfactory on this point. The word ''usual'' means customary, habitual or common and possibly even generally. Hence, in my opinion, ''usual way'' should be pleaded in the same way as one pleads a custom. Therefore, he should specifically give all the incidents of the usual way directly and specifically. The way in which it has been pleaded is as follows: The words ''counting in the usual way'' have been used at the end of para. (6). It ends with these words, ''and again at 2 p.m.''. At the time when the votes were counted in the usual way, steps taken by him have been set out in para. 7, 9 and 10, and thereafter it is stated in para. 11 as follows:

Save and except by counting the votes cast in the usual way shall in the presence of persons....

In my opinion incidents of the usual way should have been set out first and then the procedure adopted should have been outlined. Secondly, there is no averment that the returning officer carried out such election before or that in his presence this was done before. There is again no affidavit of any of his predecessors in the office of the returning officer or any other persons conversant with such election. Be that as it may, the statements in the affidavit as to the usual way cannot be rejected outright though it is defective for certain steps have been outlined indicating that they are the steps to be followed in counting in the usual way. More so, because any benefit of doubt as to the construction of the affidavit would go to the alleged contemnor. Assuming, however, that the statements in the affidavit of the returning officer to be correct, even then it remains to be seen whether he has followed the usual way. It is suggested in para. 9 in particular that the recording of the minutes was made in the usual way as a part of the counting of votes. But in para. 11 the returning officer states,

Save and except by counting the votes cast in the usual way in the presence of persons hereinbefore mentioned and recording the same in the minutes and the number of votes rejected I had not at any time whatsoever up till now made known by myself the result of such counting to any person.

Therefore, the counting of votes cast in the usual way ends when they are counted in the presence of persons hereinbefore mentioned, and the word ''and'' thereafter makes it clear that "recording the same in the minutes and the number of votes rejected" was not in the usual way. It may be said what difference does it make whether the minute was made or not because the counting had to be done according to the usual way in the presence of the representatives of candidates and counting agents. It may be said in answer that the minute as kept gives it a stamp of finality savouring of a declaration. It was further suggested in the course of argument, if I remember aright, that this was done to guard against any aspersion or charge which may be made in the main proceedings in view of the disputes between the parties. In my opinion, this is not a sufficient answer to that. It is not open to a litigant to disobey the order of Court because he thinks it was wrongly passed or because he thinks it may be prejudicial to him or because it may otherwise be defective. A part of this principle was reported in the case of Gordon v. Gordon (1946) PD 99 by Du Parcqu, L.J. in this case:

There is, of course, another matter of great importance and that is that the orders of the Court should be observed and that no litigant should be permitted to say that he feels strongly that the order is a wrong order and, therefore, he obeys it.

In the case of Mohd. Ikram Hussain Vs. State of U.P. and Others, our Supreme Court observed as follows:

Disobedience of the order of the Court entailing punishment for contempt is a very different matter from the action taken in the habeas corpus petition. The order of commitment for contempt presents no difficulty. Even if the direction was inexpedient, the order had been made for bringing Kaniz Fatima before the Court and it had to be complied with unless the Appellant could plead and prove his inability to comply with it...and if disobeyed, the contemnor is punishable by attachment and imprisonment. The valid excuse will, however, be that it is impossible to obey the order.

Therefore, in my opinion, there has been disobedience of the order as understood by the returning officer himself. This is one aspect of the matter.

It will be necessary to refer back to this disobedience after I have considered two other aspects of the matter which were canvassed before me.

Mr. J.C. Moitra, amicus curia, submitted, firstly, the word ''may'' cannot mean ''must''. Hence the returning officer had a discretion in the matter and, if he had exercised his discretion properly, he would not have nullified the effect of the last part of the order, that is to say, in. effect the part of the order directed against the declaration of the results of the polling. In my opinion the extreme proposition as to the meaning of ''may'' as urged before me is not supported by authorities. It sometimes means ''must''. The word ''may'' means ''must'', particularly when the Legislature casts a duty upon a public body or authority.

There are authorities to this effect Re Eyne and Leiceste (1892) 1 Q.B. 136 and Russel v. Rumel (1895) P. 315. In any event if it is permissible to express with what object I used the word ''may'' at the time of making the order, I may make it quite clear that I used it in the sense of ''must'' because I took into account the position of the returning officer as ''Speaker of the Assembly''. But this, however, may not as a matter of law determine the effect. Assuming, however, that the word ''may'' does not mean ''must'', then the position is this that the Court has given him the option to count in the usual way or refrain from counting at all and he has exercised that discretion possibly in a way which affects the third part of the order regarding declaration. It does not seem right for the Court that having conferred a discretion the Court will take the returning officer to task though another person in his position may have exercised the discretion in another way. Hence, in my opinion, it was open to him to count the votes in the usual way and the user of the word ''may'' did not prevent it.

Mr. Moitra secondly submitted that the returning officer has followed the second part of the order regarding counting in the usual way without any regard whatsoever of the third part of the order regarding declaration of the result of polling and has thereby wilfully nullified the most material part of the order to wit the injunction against declaration of results of the polling which was the governing consideration of the order read as a whole. Hence, the returning officer has wilfully and contumaciously disobeyed the order and is consequently guilty of contempt.

The returning officer could have, according to Mr. Moitra, reconciled the second and third parts of the order if he had stuck to the literal meaning of the word ''counting'' in the phrase ''counting in the usual way'' and had not extended it to ''counting, rechecking and re-counting'' by the representatives of the candidates. He could have after counting in the usual way kept the results of the counting to himself and kept back the ballot papers in the boxes and sealed them in the presence of the representatives of the parties.

In my opinion, this was undoubtedly one of the way of reconciling and giving effect to the order as a whole.

Mr. Advocate-General in order to meet this difficulty, if I have followed him, submitted that the Court should give clear directions as to what is required by the officer and it cannot be expected that the officer should take upon himself the burden of construing the order as a whole. There is some support for this proposition in the case of Gordon v. Gordon Supra where the order did not specify the time and name the place where the child was to be handed over. In that case it was suggested by their Lordships of the Appeal Court in England that the order was defective in that, it neither named the place where the child was to be handed over nor specified the time.

In my opinion, however, construction of a section of an Act does not stand on the same position. It would be a dangerous proposition that anyone guilty of an offence, on a true construction, can escape because there are two possible or more ways of construing the section. In my opinion, again an order of the Court stands on the same footing as the construction of a section in an Act. Hence, to that extent it is not possible for me to accept the contention advanced on behalf of the returning officer.

In my opinion, the returning officer could have also given effect to the order as a whole by reading out the said order to those who partook in the counting in the usual way and pointing out to them that any violation of the order may expose them to punishment for contempt.

There is, however, another aspect of the matter. The construction of an order in a contempt application may be relevant for the purpose of determining the intention contumacious or otherwise of the alleged contemnor because there may be room for error of judgment and in such a case again the alleged contemnor gets the benefit of doubt. It is clear to my mind that on a true construction of the order as a whole there is room for a contention that there has been violation of the order but this again does not end the matter for disobedience itself is not sufficient; there are other elements also. Hence, it is necessary for me to go through shortly some of the salient features of the law of contempt which have bearing on this question and in respect of some of which I had expressed my mind in two other earlier unreported decisions.

It is often asked why this extraordinary power has been conferred upon the Court? Oswald in his book on Contempt has answered it in different ways, but one of the most moderate expressions is to be found in these words:

A Court of justice without power to vindicate its own dignity, to enforce obedience to its mandates, to protect its officers or to shield those who are entrusted to its care, would be an anomally which could not be permitted to exist in any civilized community.

Therefore, the Court, in my opinion, should not be hesitant to punish adequately a person who is found guilty of contempt. On the other hand, there is another well-known principle which, in my opinion, no Court should forget when dealing with an application or rule for contempt. The punishment in a contempt may involve the personal liberty of a person which the Courts have always zealously guarded. Hence, this emphasis on personal liberty has in my opinion given rise to other corollaries in the law of contempt. It is a well-known rule that applications affecting the liberty of the subject are matters strictissimi juris Taylor v. Roe (1893) W.N. 14 and this also finds support from the case of Gordon v. Gordon Supra. This principle of strictissimi juris has led again to another thing that great care must be taken in settling, serving and proceeding upon a notice of motion to commet or for leave to issue a writ of attachment. In the case of Hem Bala Dassi Vs. Sundar Shaw and Others, it seems that Chakravartti, G.J., as he then was, had relaxed this rule so far as a charge is concerned in the notice of motion. The same principle in my opinion has led to the rule that in a contempt matter the alleged contemnor should get the benefit of doubt.

This rule of benefit of doubt has been recognised in our Courts in several cases: Ex parte Dinglay, Ex parte Bishop, In re Bishop 13 Ch. Div. 113 (118), Nripendra Narayan Vs. Beda Bala Debi, , AIR 1944 196 (Lahore) and the observation in Gordon v. Gordon Supra is another expression of the same group. In fact, I have also followed it in Re Contempt of Court, Kalla Properties & Industrial Corporation Ltd. (In liquidation) v. Babulal Kalla and Ors. Unreported decision of Datta, J..

There is another feature of the law which loomed largely in my mind in this matter which has a direct bearing on these two findings of violations of the order which I have noted.

In the Civil Courts there is a rule that there should be no variance between the pleading and the proof. It does not necessarily mean that any little variation is sufficient. There must be variation in respect of pleading and proof with reference to substantial matters in suit, otherwise possibly all suits have to be dismissed This again in my opinion is only an expression of the principle of natural justice in different language that no right should be adjudicated unless notice and hearing is given to the person who may be adversely affected. In this connection, reference may be made to the notes in Mulla under Order XIV, Rule 10 of the Code of Civil Procedure. I am not unmindful of the fact that in Civil Courts there have been engrafted exceptions to this principle, that is to say, the Court sometimes decides the rights of the parties on points of law based on admitted or undisputed facts after hearing the contesting parties notwithstanding that there is no pleading and alternatively. The contention is at variance with the pleading but it is never departed, so far as I understand, in the case of disputed facts.

This matter before me is not a civil matter. It is in the nature of a quasi-criminal proceeding. The same principle of natural justice finds expression with certain modifications in the Code of Criminal Procedure commencing from Section 221 and ending with Section 229. Section 221 states that every charge under this Code shall state the offence with which the accused is charged. Section 222 states that particulars as to time, place and person should be given in the charge. Section 223 states that in some cases the manner of committing offence must be stated. Section 224 states that words in charge should be taken in sense of law under which the offence is punishable. Section 225 deals with the effect of errors in the charge and Section 226 deals with procedure on commitment without charge or with imperfect charge. Section 227 gives the right to the Court to alter the charge. Section 228 gives the power to the Court to proceed with the trial immediately after alteration of the charge. Section 229 deals with the case where new trial may be directed or trials suspended.

It is not necessary for me, nor am I familiar to deal with the several sections, but it is clear to my mind that if there is a very substantial variation in the charge, then under the Code of Criminal Procedure either the charge should be corrected or a new trial must take place.

In a quasi-criminal nature it is not necessary for the Court to follow strictly these provisions of the Code of Criminal Procedure. It is sufficient for the Court to see that the alleged contemnor is punished for a charge or a disobedience which is indicated substantially in the rule. It is not necessary to make a fetish of the charge, but at the same time it cannot be forgotten that there must be adherence to the rule of natural justice even in a quasi-criminal proceeding.

The acts of disobedience were enumerated in the rule in the background of the informations which the Court gathered from the news items in the several newspapers. The rules were confined to persons whose names were then available. In the circumstances the acts of disobediences in the rule were directed against the returning officer for (1) declaration of the results, (2) allowing the results of the polling to be declared and (3) giving effect to the results.

The acts of disobediences proved before me relate to the violation of the order as to counting in the usual way in either view of the matter including in one case failure to take precautionary measure to guard against the publication of the results. The materials, therefore, were not before the Court at the time when the rule was issued and, in any event, the Court did not issue a rule directed against such violations against the returning officer.

A limited charge or rule cannot include a wider charge or rule. A charge or rule directed against specified acts of disobediences cannot include specified acts of disobediences of a different kind. In my opinion, this difference in the nature of these acts of disobediences and the rule or charges mentioned therein is not merely an error but is more than that. It is substantial. These acts of violation of the order do not fall within the ambit of the rule issued. The returning officer did not come to answer these charges in this rule. If he was charged for acts or act of disobedience, now established before me, he might have given other grounds or he might have chosen a different course of action. In my opinion, if the returning officer is punished in this application for contempt on these two grounds it will be in violation of the principle of natural justice.

Hence, the rule as issued cannot be the basis of punishing him for contempt.

The charge or rule may be reframed or altered or a fresh rule may be issued. The reframing of the rule or altering the charge in a contempt application at this stage when the rule has been served would create unsurmountable difficulty. In my opinion, it would not be again right to issue a fresh rule at this stage where hearing has been concluded for it would have the effect of bringing a person twice in Court over the same connected matter which may affect his personal liberty and savour of vindictiveness on the part of the Court, more so, because the representatives of both candidates according to the said news items to have been responsible for the declaration. Hence, I am not disposed to do either.

It may be further noticed that mere disobedience or violation of the order is not sufficient. There must be wilful or deliberate contumacious violation of the order. The Court cannot delve into the mind of another person. Hence, the Court has to gather the state of mind from relevant materials before it keeping in view that it is presumed that every man intends what he does. The knowledge of the order and violation of the same raises a presumption in my opinion of a wilful or deliberate contumacious violation of the order. The presence of a motive may be almost decisive. In this connection, observation made in a recent English case Attorney-General v. Butterworth and Ors. (1962) 3 A.E.R. 326 may be quoted with advantage:

But when the act is done with mixed motives, as indeed the acts here were done, what is the position? If it is done with the predominant motive of punishing witnesses, there cannot be no doubt that it is a contempt of Court. But even though it is not the predominant motive, yet, nevertheless, if it is an actuating motive influencing the step taken, it is in my judgment, a contempt of Court. I do not think that the Court is able to, or should enter into a nice assessment of the weight of the various motives which, mixed together, result in the victimisation of a witness. If one of the purposes actuating the step is the purpose of the punishment, then it is a contempt of Court in everyone so actuated.

In this case no motive has been imputed to the returning officer or can be gathered from the materials before me.

The impossibility of obeying the order is a. good excuse. This, however, is not the case of the returning officer.

In this case there is an averment on oath by the returning officer that he did not intend to violate the order and he expressed his regret if there was any unintentional violation of the same. In my opinion, this is not decisive though it is a factor which should be taken into consideration in favour of the returning officer. There is again a possibility that bona fide error of judgment in construing the order on the part of the returning officer has occasioned these disobediences or violations of the order.

Hence, though there may be room for saying that the violations may have been deliberate and contumacious, I do not think it would be right to express a firm view on the matter either way in the view that I have taken of the scope of the present rule or acts of disobedience.

In the result, in my opinion, the rule must be discharged and is hereby discharged.

I shall before concluding take the opportunity of thanking Mr. J.C. Moitra who has, as an amicus curia, giving the advantage of his submissions ungrudgingly to the Court.