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Hub Lal Vs. Emperor - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad
Decided On
Reported inAIR1926All402
AppellantHub Lal
RespondentEmperor
Excerpt:
- .....second class. he refused to order the prosecution of the applicant. an appeal was then made to the district magistrate. the same officer was both district magistrate and collector. he held, and rightly that the appeal lay to him in his character as collector and not in his character as district magistrate. he considered however that the defective form of the application was no bar to his directing a prosecution in his character of collector. the applicant treating this as an order passed by the collector as an original court and not an appellate court filed an appeal against it to the district judge. the district judge rejected the appeal on the ground that this was a revenue matter in which the appeal lay to the commissioner. if the order was passed by the collector as an original court.....
Judgment:

Daniels, J.

1. This is an application in revision of an order of the Collector of Etawah directing the prosecution of the applicant Lala Hub Lal for offences tinder Sections 193, 209 and 210, Indian Penal Code, in respect of two applications dated 28th July 1924 and 30th October 1924 which were for the execution of an alleged distraint decree. I have first of all two legal objections to consider. The applications were made to the Tahsildar as an Assistant Collector of the Second Class. He refused to order the prosecution of the applicant. An appeal was then made to the District Magistrate. The same officer was both District Magistrate and Collector. He held, and rightly that the appeal lay to him in his character as Collector and not in his character as District Magistrate. He considered however that the defective form of the application was no bar to his directing a prosecution in his character of Collector. The applicant treating this as an order passed by the Collector as an original Court and not an appellate Court filed an appeal against it to the District Judge. The District Judge rejected the appeal on the ground that this was a revenue matter in which the appeal lay to the Commissioner. If the order was passed by the Collector as an original Court it would be a question of some difficulty to whom the appeal lay. Under Section 195(3)(b), Criminal P.C., the Collector is deemed to be subordinate either to the civil or the revenue Court according to the nature of the proceeding. Proceedings under Section 142 come under group (A) of the Fourth Schedule of the Tenancy Act. Where the value is under Rupees 100, as was the case here they are triable only by an Assistant Collector of the Second Class and the appeal lies to the Collector, no further appeal being allowed. The matter has therefore to be determined by the first para, of Sub-section (3) and the Collector would be subordinate to the Court to which appeals ordinarily lie from his Court which would, in my opinion, lie before the Court of the Commissioner. It appears to me, however, that in this case the Collector really passed the order in the capacity of an appellate Court. He might have required the appellant to amend his appeal by correcting the word 'Magistrate' into the word 'Collector' Instead of doing this he treated the mistake as a mere verbal clerical error and dealt with the case on the footing that he was the Collector and that the appeal had been preferred to him though he had been described by a wrong title. In this view no further appeal lay from his order.

2. The second legal ground is that the Collector professes to give sanction to the prosecution of Hub Lal, whereas under the Criminal P.C., as now amended be should have made a complaint against Hub Lal under the provisions of Section 476. The Collector seems to have realized that he was acting under Section 476, for immediately after the words 'sanction the prosecution' he adds a direction sending the case to Sub-Divisional Magistrate for trial. As a Court of revision the High Court has power to correct the erroneous form of the Collector's order, and in the exercise of that power I alter the words 'sanction the prosecution of Hub Lal' in the Magistrate's order to the words 'make a complaint against Hub Lal.'

3. On the merits I find no sufficient ground for interfering with the Collector's finding that there was a prima facie case for Hub Lal's prosecution. I, therefore, correct the Collector's order as directed above, but in other respects dismiss the application.


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