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Emperor Vs. Bhajan Tewari - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad
Decided On
Judge
Reported in(1915)ILR37All334
AppellantEmperor
RespondentBhajan Tewari
Excerpt:
civil procedure code (1908), sections 68 and 70; schedule iii - execution of decree by collector--delegation to assistant collector of functions of collector--application to assistant collector to take action ultra vires--act no. xlv of 1860 (indian penal code), section 182. - .....directing the prosecution of the applicant for an offence under section 182 of the indian penal code. a question might arise as to whether this application should not have been presented under section 115 of the code of civil procedure and not under chapter 32 of the code of criminal procedure. but in the view i take of the case it is unnecessary to discuss the question. it appears that one bindhachal tewari obtained a decree for money against bhajan tewari and others in the court of the munsif of basti. in execution of that decree immovable property was ordered to be sold, and the execution of the decree was transferred under section 68 of the code of civil procedure to the collector of basti. on the 23rd of october, 1914, a sale took place, and the property was knocked down to one.....
Judgment:

Chamier, J.

1. This is an application for revision of an order passed by an Assistant Collector of the first class in the Basti district directing the prosecution of the applicant for an offence under Section 182 of the Indian Penal Code. A question might arise as to whether this application should not have been presented under Section 115 of the Code of Civil Procedure and not under chapter 32 of the Code of Criminal Procedure. But in the view I take of the case it is unnecessary to discuss the question. It appears that one Bindhachal Tewari obtained a decree for money against Bhajan Tewari and others in the court of the Munsif of Basti. In execution of that decree immovable property was ordered to be sold, and the execution of the decree was transferred under Section 68 of the Code of Civil Procedure to the Collector of Basti. On the 23rd of October, 1914, a sale took place, and the property was knocked down to one Ramphal Misra. On the 3rd of November, 1914, the judgement-debtor presented a petition under Rule 30 of the rules made by the Local Government under Sections 68 and 70 of the Code of Civil Procedure praying for permission to pay the sum decreed and five per cent, of the purchase money. Next day he presented a petition in which he said he had paid in the sum required by Rule 30, and he prayed that the sale might be set aside. On the 5th of November, he put in a petition saying that some unauthorized person had paid the money into the Treasury and he charged Bansi and others with having compelled him to put his thumb impression on a blank paper which was subsequently used for the petition under Rule 30. It is quite clear that the Assistant Collector to whom these applications were presented was a public servant, and I will assume that a charge might properly be brought against Bhajan Tewari under Section 182 of the Indian Penal Code in respect of the statements made by him in his third petition. On behalf of Bhajan it is, however, contended that the Assistant Collector, who ordered his prosecution, had no power to do so, not being a civil, criminal or revenue court. The Assistant Collector has the powers of a Magistrate of the first class; but the application was not made to him as a Magistrate, it is clear that it was not made to him as a revenue court, and it is beyond question that even if the officer in question could be regarded as a criminal or revenue court, the alleged offence was not committed before him or brought under his notice in the course of any judicial proceeding of a criminal or revenue court. The question is whether the Assistant Collector was, or had the powers of a Civil Court in respect of the application made by Bhajan Tewari. The rules made by the Local Government, above referred to, contain provisions authorizing a Collector to make over to any Assistant Collector of the first class any of the powers and duties conferred by the rules upon the Collector with certain exceptions. It seems that in respect of powers and duties delegated by the Collector to an Assistant Collector of the first class the latter may be a Civil Court, for Section 70 of the Code of Civil Procedure authorizes the Local Government to make rules conferring upon a Collector or any gazetted subordinate of the Collector all or any of the powers which the court, that is, the Civil Court, might have exercised in the execution of the decree, if the execution had not been transferred to the Collector. Among the powers of a Collector which may not be delegated to an Assistant Collector under the rules are the powers to order a sale under paragraph (1)(c) and certain other paragraphs of the third schedule to the Code of Civil Procedure and the power to confirm a sale or set aside a sale under Rule 32 of the rules made by the Local Government. It thus appears that the Assistant Collector who has ordered the prosecution of the applicant had not power either to sell the property as a court or to confirm the sale or to set it aside. The application in respect of which the prosecution has been ordered was presented to the Assistant Collector. Possibly no objection could be taken to this; but the Assistant Collector could not deal with the application. He could only pass it on to the Collector who would then dispose of it with the powers of a Civil Court. It appears to me that so far as the application in question was concerned, the Assistant Collector had not powers of a Civil Court and the application was not presented to him in the course of a judicial proceeding. That being so, I must hold that the Assistant Collector had no power to order the prosecution of the applicant. I therefore set aside his order.


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