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B. Karunakar Hegde Vs. the State of Mysore - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKarnataka High Court
Decided On
Case NumberCriminal Revn. Petn. No. 375/1962
Judge
Reported inAIR1963Mys153; (1963)1MysLJ22
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 195, 195(1), 195(2) and 476; Indian Penal Code (IPC) - Sections 182, 471 and 474; Madras Cultivating Tenants Protection Act, 1955 - Sections 3A
AppellantB. Karunakar Hegde
RespondentThe State of Mysore
Appellant AdvocateB.V. Deshpande, Adv.
Respondent AdvocateRadhakrishna, Govt. Pleader
Excerpt:
.....necessary before cognizance could be taken by the magistrate, in respect of the complaint of the alleged offences under sections 474 and 471 of the i. he points out that according to the facts alleged by the prosecution, the false representation by the petitioner that the old man was the tenant anantha naika, as well as the execution of the false document by that anantha naika, all took place in the presence of the tahsildar on 9-2-1959. it has been contended by the learned advocate that the alleged facts giving rise to the offence of forgery and those giving rise to the offence of giving false information to a public servant are all inextricably mixed up and that, therefore, when no complaint has been made by the tahsildar for an offence punishable under section 182 of the indian..........(on a perusal of the relevant papers), to take his trial before the court of session, for the alleged offences under sections 474 and 471 of the i. p. c.3. the first ground which has been urged by sri b. v. deshpande on behalf of the petitioner is, that in the absence of a complaint by the court of tahsildar, under section 476 of the cri. p. c., the magistrate had no jurisdiction to take cognizance of the case against the petitioner, merely on a charge sheet filed by the police. it is contended that in the present case, there has been a contravention of the mandatory provisions of sections 476 and 195 of the criminal procedure code, on the ground that the complaint by the tahsildar was a condition precedent for the magistrate taking cognizance of the alleged offences. this is the.....
Judgment:

M. Sadasivayya, J.

1. The petitioner has been charged for having committed offences punishable under Sections 474 and 471 of the I. P. C. He has been committed to take his trial before the Sessions Judge of South Kanara. In the present revision petition, the order committing the petitioner to take his trial before the Court of Session, has been attacked on the ground that the said order is illegal and is in contravention of the mandatory provisions of law and the prayer is for the quashing of the order of commitment. Amongst other sections, this petition purports to be also under Section 561-A of the Code of Criminal Procedure.

2. The facts as can be gathered from the order of commitment, are as follows :

The present petitioner had been in possession, on 16-2-1960 of a forged 'Soda Chit' or a relinquishment deed in respect of a land bearing Survey No. 30-46-A which was situated at Killings locality of Havanje village. The allegation also was that on the same date, viz., 16-2-1960, the petitioner had dishonestly used as genuine that 'Soda Chit', knowing or having reason to believe at the time it was used, that it was a forged document. The prosecution case was that the accused had thereby committed offences under Sections 474 and 471 of the Indian Penal Code. This 'Soda Chit' was dated 9-2-1959 and purported to have been executed by one Anantha Naika. From the facts stated in the order of commitment, it would also appear that the prosecution allegations were to the effect that on 9-2-1959 the petitioner had produced an old man before the Tahsildar, representing that the old man was the tenant Anantha Naika who wanted to execute this release deed in respect of the leased land. According to the case of the prosecution, the real tenant Anantha Naika had not at all executed this 'Soda Chit' or relinquishment deed. It is on these allegations, the accused was committed by the learned Magistrate (on a perusal of the relevant papers), to take his trial before the Court of Session, for the alleged offences under Sections 474 and 471 of the I. P. C.

3. The First ground which has been urged by Sri B. V. Deshpande on behalf of the petitioner is, that in the absence of a complaint by the Court of Tahsildar, under Section 476 of the Cri. P. C., the Magistrate had no jurisdiction to take cognizance of the case against the petitioner, merely on a charge sheet filed by the police. It is contended that in the present case, there has been a contravention of the mandatory provisions of Sections 476 and 195 of the Criminal Procedure Code, on the ground that the complaint by the Tahsildar was a condition precedent for the Magistrate taking cognizance of the alleged offences. This is the only ground which has been mentioned in the revision petition. But, the learned Advocate for the petitioner, with the leave of the Court, urged one more contention. That contention was to the effect that even if the Tahsildar was not a Court, nevertheless, the provisions of Clause (a) of Sub-section (1) of Section 195 of the Criminal Procedure Code would be attracted to the present case, on the ground that the misrepresentation alleged to have been made by the accused before the Tahsildar in regard to that old man being no other than the tenant Anantha Naika, would be an offence punishable under Section 182 of the Indian Penal Code. It was argued that if the facts alleged against the petitioner disclose an offence which would be really one punishable under Section 182 of the I. P. C., then even though the prosecution purports to be only for offences under Sections 474 and 471 of the I. P. C. it cannot be permitted unless there was a complaint by the public servant concerned, namely, Tahsildar, for the offence under Section 182 of the I. P. C., as required under Section 195 (1) (a) of the Cri. P. C. We will now proceed to consider the merits of these contentions.

4. The first argument of Sri Deshpande is, that the Tahsildar in accepting the surrender on the basis of the representation alleged to have been made by the petitioner and on the strength of the 'Soda Chit', was functioning as a Court, under the provisions of Section 3-A of the Madras Cultivating Tenants Protection Act, 1955. The said Section 3-A was inserted in that Act, by the Mysore Act No. 15 of 1957 and reads as follows :

'3-A. Surrender by cultivating tenants :

(1) A cultivating tenant may at any time surrender his rights in any land leased to him in favour of the landlord.

(2) A surrender referred to in Sub-section (1) shall not be effective unless it is made by the cultivating tenant in writing, and is admitted by him before, and is made in good faith to the satisfaction of, the Tahsildar, and is registered in the office of the Tahsildar in the prescribed manner :

'Provided that where the land is cultivated jointly by joint cultivating tenants or members of an undivided Hindu Family, unless the surrender is made by all of them it shall be ineffective in respect of such joint tenants as have not subscribed to such surrender.

3. Whoever contravenes the provisions of Sub-section (2), shall, on the conviction, be punishable with fine which may extend to two hundred and fifty rupees.'

5. The relevant part of Section 3-A Sub-section (2) states that the surrender shall not be effective unless it is made by the cultivating tenant in writing, and is admitted by him before, and is made in good faith to the satisfaction of, the Tahsildar, and is registered in the office of the Tahsildar in the prescribed manner. Now, the only thing that is required of the Tahsildar, under that sob-section is, that, he should be satisfied that the surrender in writing has been made by the cultivating tenant in good faith. The question is whether in being so satisfied, the Tahsildar can be stated to be performing any of the functions of a Court. That there is a distinction made in the provisions of the Madras Cultivating Tenants Protection Act, 1955, between a Court and the Revenue Officers, is clear from a perusal of Section 3 of that Act. Clause (a) of Sub-section (3) of Section 3, provides for the deposit in Court of the rent by a cultivating tenant. It also provides for the issue of a notice by the Court to the landlord of the deposits so made. In Clause (c) of the said Sub-section (3), it is stated that the expression 'Court' in this sub-section moans, 'the Court which passed the decree or order for eviction or where there is no such decree or order, the Revenue Divisional Officer.' It is clear from the above provisions that distinction has been maintained in that Act, between a Court and other Revenue Officers who have to perform the functions under the provisions of that Act.

6. Though the expression 'Court' may mean the Revenue Divisional Officer, in the circumstances referred to in Clause (c) of Sub-section (3), no provision has been pointed out to us in the Act, by virtue of which the Tahsildar while functioning for the purposes of Section 3-A, can be said to function as a Court. In the case of Virindar Kumar Satyawadi v. State of Punjab reported in (S) : 1956CriLJ326 , it has been stated as follows at page 157 :

'It may be stated broadly that what distinguishes a Court from a quasi-judicial tribunal is that it is charged with a duty to decide disputes in a judicial manner and declare the rights of parties in a definitive judgment. To decide in a judicial manner involves that the parties are entitled as a matter of right to be heard in support of their claim and to adduce evidence in proof of it.

And it also imports an obligation on the part of the authority to decide the matter on a consideration of the evidence adduced and in accordance with law. When a question therefore arises as to whether an authority created by an Act is a Court as distinguished from a quasi-judicial tribunal, what has to be decided is whether having regard to the provisions of the Act it possesses all the attributes of a Court.'

It was by the application of the principles above stated that their Lordships of the Supreme Court decided in that case, as to whether, in view of the functions and powers entrusted to the Returning Officer under the Representation of the People Act he was a Court. Their Lordships stated farther as follows :

'The statutory provision bearing on this matter is Section 36. Under Section 36 (2), the returning Officer has to examine the nomination paper and decide all objections which may be made thereto. This power is undoubtedly judicial in character. But in exercising this power, he is authorised to come to a decision 'after such summary enquiry, if any, as he thinks necessary.' That means that the parties have no right to insist on producing evidence which they may desire to adduce in support of their case.....................

There is no 'lis', in which persons with opposing claims are entitled to have their rights adjudicated in a judicial manner, but an enquiry suck 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 is 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 Procedure, and the result is that even as regards the charge under Section 193, the order of the Magistrate was not appealable, as the offence was not committed in or in relation to any proceeding in a Court.'

7. In being satisfied that a surrender in writing by a cultivating tenant has been made in good faith, the Tahsildar, under Section 3-A, is not performing any judicial function. He does not thereby make any adjudication, in a judicial manner. In these circumstances, we are satisfied that there is no strength in the contention that the Tahsildar before whom the 'Soda Chit' in question was executed was a Court and that, therefore, a complaint by him, in his capacity as a Court was necessary before cognizance could be taken by the Magistrate, in respect of the complaint of the alleged offences under Sections 474 and 471 of the I. P. C.

8. The next argument which has been advanced is that the Tahsildar before whom the 'Soda Chit' in question is stated to have been executed, was a public servant and that by reason of Section 95(1) of the Criminal Procedure Code, the Magistrate was not competent to take cognizance of these offences, without a complaint in writing by the Tahsildar. Section 195 (1) (a) is as follows :

'(1) No Court shall take cognizance :

(a) of any offence punishable under Sections 172 to 188 of the Indian Penal Code (XLV of 1860), except on the complaint in writing of the public servant concerned, or of some other public servant to whom he is subordinate;'

Sections 474 and 471 of the Indian Penal Code are not mentioned in Section 195 (1) (a) of the Cri. P. C. Therefore, ordinarily, the provisions of Section 195 (1) (a) will not be attracted to offences under Sections 474 and 471 of the Indian Penal Code. But, the argument advanced by Sri. Deshpande is that from the facts alleged against the petitioner, the offence that is disclosed against him, is that of giving false information to a public servant, punishable under Section 182 of the Indian Penal Code. He points out that according to the facts alleged by the prosecution, the false representation by the petitioner that the old man was the tenant Anantha Naika, as well as the execution of the false document by that Anantha Naika, all took place in the presence of the Tahsildar on 9-2-1959. It has been contended by the learned Advocate that the alleged facts giving rise to the offence of forgery and those giving rise to the offence of giving false information to a public servant are all inextricably mixed up and that, therefore, when no complaint has been made by the Tahsildar for an offence punishable under Section 182 of the Indian Penal Code, the Magistrate was not competent to take cognizance of the alleged offence under Sections 474 and 471 of the I. P. C. It is urged by Sri Deshpande that in having taken cognizance of the alleged offences under Sections 474 and 471 of the Indian Penal Code, the Magistrate has lost sight of the fact that there would be an evasion of the requirements of Section 195 (1) (a) of the Code of Criminal Procedure. The learned Advocate also brought to our notice some authorities to the effect that where the taking of cognizance by the Magistrate would lead to an evasion of the provisions of Section 195 of the Code of Criminal Procedure, the cognizance and the subsequent proceedings would be bad in law. We do not consider it necessary to refer to any of those authorities, for the reason that this aspect of the matter has been considered by the Supreme Court in the case of Basir-ul-Huq v. State of West Bengal, reported in : 1953CriLJ1232 .

In that case, the accused had lodged information at the police station to the effect that the complainant Dhirendra Nath had beaten and throttled his mother to death. On the complaint so given by the accused, the Sub-Inspector accompanied by the accused proceeded to the cremation ground where the dead body of the complainant Dhirendranath's mother was on the funeral pyre. The Sub-Inspector caused the dead body to be brought down from the pyre and it was subjected to a post-mortem examination, as a result of which, it was found that there were no marks of injury on the body. The Sub-Inspector of Police, after investigation, reached the conclusion that the information which had been given by the accused against Dhirendra Nath was a false one. Thereafter, Dhirendra Nath filed a complaint against the accused, alleging that the accused had given false information to the police with the intention of harming the reputation of Dhirendra Nath and that the accused had trespassed on the cremation ground to wound Dhirendra Nath's religious feelings. Two charges had been framed by the Magistrate against the accused in that case; one was for an offence under Section 297 of the I. P. C. and the other was under Section 500 of the I. P. C. The contention which had been raised on behalf of the accused was that the Magistrate had no jurisdiction to take cognizance of the complaint under Sections 500 and 297 of the Penal Code as the facts disclosed constituted an offence under Section 182 of the I. P. C. which offence could not be tried except on a complaint by a public servant. In discussing the scope of Section 195 of the Criminal Procedure Code, the Supreme Court stated as follows :

'Section 195, Criminal Procedure Code on which the question raised is grounded, provides inter alia, that no Court shall take cognizance of an offence punishable under Sections 172 to 188, Penal Code, except on the complaint in writing of the Public servant concerned, or some other public servant to whom he is subordinate. The statute thus requires that without a complaint in writing of the public servant concerned no prosecution for an offence under Section 182 can be taken cognizance of. It does not further provide that if in the course of the commission of that offence other distinct offences are committed, the Magistrate is debarred from taking cognizance in respect of those, offences as well. The allegations made in a complaint may have a double aspect, that is, on the one hand these may constitute an offence against the authority of the public servant or public justice, and on the other hand, they may also constitute the offence of defamation or some other distinct offence. The section does not per se bar the cognizance by the Magistrate of that offence, even if no action is taken by the public servant to whom the false report has been made'.

9. It is no doubt true that in the present case, the Tahsildar has not made any complaint in respect of the false information alleged to have been given to him by the petitioner, to the effect that the old man executing the 'Soda Chit' was the tenant Anantha Naika. But, from what has been stated by the Supreme Court in the passage above quoted it is clear that the failure on the part of the public servant to have made a complaint in respect of an offence falling under Section 182, will not be a bar to cognizance being taken by the Magistrate of any offence which is distinct from that falling under Section 182 of the I. P. C. In the present case, the offences under Sections 474 and 471 of the I. P. C., for which the present petitioner has been committed to take his trial, are alleged to have taken place on 16-2-1960. That is, these two offences which are the subject-matter of the charge, are alleged to have taken place more than one year after the 'Soda Chit' was executed in the presence of the Tahsildar. The alleged offences of fraudulently and dishonestly using as genuine this 'Soda Chit' and the petitioner having in his possession this 'Soda Chit', knowing the same to be forged, and intending that the same shall fraudulently or dishonestly be used as genuine, are offences which are quite distinct from the offence of giving false information to a public servant which is punishable under Section 182 of the I. P. C. Therefore, we are not satisfied that there was any legal impediment to the Magistrate taking cognizance of these two distinct offences, merely on the ground that the Tahsildar had not made any complaint for an offence punishable under Section 182 of the I. P. C. In the same case which has been quoted above, the Supreme Court has further observed as follows :

'Though, in our judgment, Section 195 does not bar the trial of an accused person for a distinct offence disclosed by the same facts and which is not included within the ambit of that section, it has also to be borne in mind that the provisions of that section cannot be evaded by resorting to devices or camouflages. The test whether there is evasion of the section or not is whether the facts disclose primarily and essentially an offence for which a complaint of the Court or of the public servant is required. In other words, the provisions of the section cannot be evaded by the device of charging a person with an offence to which that section does not apply and then convicting him of an offence to which it does, upon the ground that such latter offence is a minor offence of the same character, or by describing the offence as being one punishable under some other section of the Indian Penal Code, though in truth and substance the offence falls in category of sections mentioned, in Section 195, Cri. P. C. Merely by changing the garb or label of an offence which is essentially an offence covered by the provisions of Section 195 prosecution for such an offence cannot be taken cognizance of by misdescribing it or by putting a wrong label on it.'

Reliance has been placed by Sri Deshpande on the above observation of the Supreme Court, in support of a contention to the effect that the real and true offence disclosed by the facts alleged is one punishable under Section 182 of the Indian Penal Code and that by merely labelling such an offence as being one under Section 474 or 471 of the I. P. C. the requirements of Section 195 (1) (a) of the Code of Criminal Procedure, cannot be evaded. In other words, the contention of the learned Advocate is that this is merely a device to get over the requirements of Section 195 (1) (a) of the Code of Criminal Procedure. After a careful consideration of these contentions advanced by the learned Advocate, we are satisfied that there is no substance in the same. The alleged offences under Sections 474 and 471 I. P. C. are, in our opinion, clearly distinct from an offence under Section 182 of the I. P. C. which also may arise from the facts alleged by the prosecution. We are not satisfied that there has been any resort to prosecution under Sections 474 and 471 of the I. P. C. as a device to evade the requirements of Section 195 (1) (a). It seems to us from what has been stated in the order of commitment, that in truth and in substance, the alleged offences would fall under Sections 474 and 471 of the I. P. C.

10. For the reasons above stated, we do not find any good ground to interfere with the order of commitment. The prayer for the quashing of the order of commitment, is rejected and this revision petition is dismissed.


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