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Swarup Singh and ors. Vs. the State of Rajasthan and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtRajasthan High Court
Decided On
Case NumberS.B. Cri. Misc. Application No. 128 of 1984
Judge
Reported in1985(1)WLN251
AppellantSwarup Singh and ors.
RespondentThe State of Rajasthan and anr.
DispositionApplication allowed
Excerpt:
rajasthan land ceiling act - sections 38 & 6--competent authority finding that petitioners do not hold land in excess of ceiling limit--petitioners not under obligation to file returns--held, basis of prosecution disappears and no offence under section 38 is committed.;when the competent authority has thus come to the conclusion that the petitioners do not hold any land in excess of the ceiling limit and the proceedings under section 5(1) of the act have been dropped the question of the petitioners filing the returns under section 6(1) of the act loses its significance because it is only a person holding land in excess of the ceiling limit who is bound to furnish the statement under section 6(1) of the act and if the petitioners were not bound to furnish the statements, they could not..........was dismissed.2. the facts giving rise to this application briefly stated are that on 7-7-80 the competent authority under the rajasthan land ceiling act (hereinafter referred to as 'the act') filed a complaint against the present petitioners 'before the judicial magistrate no. 4, jodhpur alleging that the petitioners who were bound to file their returns under section 6(1) of the act by 6-10-76,' had failed to furnish the same and had later furnished incomplete returns on 28-2-78 and had thus committed an offence punishable under section 38(1) of the act. the learned judicial magistrate took cognizance of this offence by his order dated 7-7-80. the petitioners filed a revision against that order before this court. one of the grounds raised in the revision was that the learned.....
Judgment:

K.S. Lodha, J.

1. This is an application under Section 482 Cr. P.C. against the order of the learned Addl. Sessions Judge No. 1, Jodhpur, by which the petitioners' revision against the order of the learned Judicial Magistrate No. 4, Jodhpur dated 7-8-81 was dismissed.

2. The facts giving rise to this application briefly stated are that on 7-7-80 the competent authority under the Rajasthan Land Ceiling Act (hereinafter referred to as 'the Act') filed a complaint against the present petitioners 'before the Judicial Magistrate No. 4, Jodhpur alleging that the petitioners who were bound to file their returns under Section 6(1) of the Act by 6-10-76,' had failed to furnish the same and had later furnished incomplete returns on 28-2-78 and had thus committed an offence punishable under Section 38(1) of the Act. The learned Judicial Magistrate took cognizance of this offence by his order dated 7-7-80. The petitioners filed a revision against that order before this Court. One of the grounds raised in the revision was that the learned Magistrate did not consider the question of limitation for taking: cognizance of the offence. This Court observed that this matter of limitation-can properly be gone into by the trial court and, therefore, the order dated' 7-7-80 was set aside and the matter was remanded to the learned Magistrate to decide the question of limitation and thereafter to proceed in accordance with law.

3. After the remand, the competent authority moved an application; before the court for permission to amend the complaint in order to-incorporate the date of knowledge which was sought to be made starting, point of limitation. In para 8 of this application it was stated that on 16-5-77,. for the first time the Asst. Engineer (Ceiling) expressed the possibility that the petitioners may be holding more than the prescribed limit of land and, therefore, a notice under Section 38 of the Act may be issued to them. The competent authority thereupon wanted to get the fact whether the returns have been filed or not to be verified because without that the commission of the offence could not be ascertained. It was further mentioned that this could not be ascertained till 16-12-77 on which date the Asst. Engineer again directed to issue of notice. Thereupon the papers were put upon 2-1-78 and on that date notices were issued to the petitioners and the petitioners also on that date asked for 15 days time to submit the returns. It was further mentioned that the petitioners then, filed incomplete returns on 28-2-78 and failed to complete them despite notice-In these circumstances, it was contended in the application that the commission of offence came to the knowledge of the competent authority for the first time on 21-7-78 or on 6-1-78 and, therefore, the complaint was within time.

4. After hearing the parties the learned Magistrate by his order dated 7-8-81 found that the period of limitation in this case started running against the complainant from 2-1-78 when the notice under Section 38 of the Act was issued because before that the competent authority could not have found out whether the offence had been committed by the petitioners or not and, therefore cognizance could be taken on 7-7-80. He also was of the opinion that in view of Section 38(2) of the Act the offence under Section 38(1) was a continuing offence and, therefore, also cognizance could not be said to be barred as admittedly returns were filed only on 28-2-78. Aggrieved of this order, the petitioners filed a revision before the learned Sessions Judge, Jodhpur, which came to be heard by the learned Addl. Sessions Judge No. 1, Jodhpur and the same was dismissed by order dated 27-10-83. Hence this application.

5. In this application the learned Counsel for the petitioners has submitted a photostat copy of the order of the competent authority under the Act dated 16-12-83 by which the competent authority had come to the conclusion that the petitioners did not have any land in excess of the ceiling limit and, therefore, the proceedings under Section 6(1) of the Act were dropped.

6. I have heard the learned Counsel for the parties.

7. Three contentions have been raised before me by the learned Counsel for the petitioners.

8. His first contention is that the learned Magistrate was not justified in taking into consideration the application for amendment of the complaint filed on 8-7-81 in as much as there is no provision for amendment of the complaint in the Criminal Procedure Code.

9. His second contention is that even. If the facts stated in this application are taken into consideration, no ground for holding that it was on 2-1-78 that the competent authority cams to know of offence being made out because according to these facts also it only appears that the competent authority was only proceeding on conjectures and surmises. It has not specifically been alleged in the application much less in the complaint that the petitioners had in their possession land in excess of the ceiling limit and were bound to furnish the returns under Section 6(1) of the Act without any reasonable cause. Unless this was stated in the complaint or atleast in the application filed on 8-7-81, the offence could not be said to have been made out.

10. His third contention was that now since the 'competent authority has himself held by his order dated 16-12-83 that the petitioners did not have any land in excess of the ceiling limit, no offence under Section 38 of the Act can be made out against the petitioners and, therefore, the proceedings before the trial court deserve to be quashed.

11. The learned Public Prosecutor, on the other hand urged that when the question of limitation was directed to be decided by this Court by its order dated 2-6-81, the necessary facts pertaining to this question were brought 16 the notice of the Magistrate by the application dated 8-7-81 and, therefore, the learned Magistrate was justified in taking them into consideration, that the facts stated in para 8 of the said application clearly established that it was on 2-1-78 that the competent authority for the first time came to know of the commission of the offence by the petitioner and, therefore, the complaint was within time, and the Magistrate also took cognizance within time, and that the judgment of the competent authority dated 16-12-83 is a subsequent event and has nothing to do with the question of limitation.

12. I have given my careful consideration to the rival contentions.

13. It is true that the facts constituting the offence and enabling the Court to take cognizance thereof ought to have been mentioned in the complaint itself and ordinarily the averments made in the application dated 8-7-81 could not have been allowed to be brought on record after the accused had already raised the question of limitation. However, in a peculiar circumstance of this case when the question of limitation had been left open by this Court by its order dated 2-6-81 and when no objection was raised by the petitioners when the application dated 8-7-81 was filed and was being considered by the learned Magistrate, the petitioners cannot now be allowed to raise any objection about the facts stated in this application being taken into consideration.

14. In the complaint the complainant did not state that it was on a later dated then 6-10-76, the due date for filing of the returns, the offence came' to the knowledge of the competent authority and to fill up this lacuna the application dated 8-7-81 was filed. This application in my opinion is a very vague and indefinite one in as much as even this application does not show that the fact that the offence of not filing the returns in time came to the notice of the competent authority only on 2-1-78 because the averments in the application clearly go to show that these facts came to the knowledge of the petitioners much earlier but no prompt action was taken and the matter was allowed to drag on. In para 8 of this application it is mentioned that it was on 16-5-77 that the Assistant Engineer had expressed the possibility of the petitioners holding the land in excess of the ceiling limit. By that time the prescribed date for filing the returns i.e. 6-10-76 had already expired and when this possibility was expressed by the Assistant Engineer, the competent authority should have immediately taken steps to ascertain whether the petitioners were guilty of not filing the returns but no action worth the name appears to have been taken in this respect till 26-12-76 when the Assistant Engineer again directed issue of notice and then it was on 2-1-78 that the notice is said to have been issued. Now it is not stated in the application how it was ascertained by the competent authority that the petitioners held land in excess of the ceiling limit and were bound to file the returns under Section 6(1) of the Act. All that is stated in para 8 of this application is that on 2-1-78 notices were issued to the petitioners asking them to furnish their returns and on that the petitioners asked for 15 days' time and they furnished the returns on 28-2-78.

15. For constituting the offence under Section 38 of the Act it was necessary for the prosecution to show that the petitioners were under an obligation to file a statement under this Act and they had failed without reasonable cause or excuse to file the statement within the time specified for the purpose. Under Section 6(1) of the Act a person holding vacant land in excess of the ceiling limit has to file a statement before the competent authority. Therefore, in order to show that the petitioners were bound to file the statement it was necessary rather obligatory on the part of the competent authority to allege and show that the petitioners were bound to file the returns under Section 6 of the Act or in other words to show that they were holding land in excess of the ceiling limit. There is not a trace of an averment that the petitioners were holding land in excess of the ceiling limit in the complaint or the application dated 8-7-81 nor is it mentioned that on 2-1-78 the competent authority had come to the conclusion that the petitioners held land in excess of the ceiling limit and, therefore, were bound to file a statement under Section 6(1) of the Act and having failed to do so within prescribed time they had committed an offence. On the other hand the averments in this application go to show that there was only surmise or conjecture that the petitioners may be holding the land in excess of the ceiling, limit. It will be pertinent to re-produced para 8 of this application:

Para 8:

;g gS fd fn% 19&5&77 dks loZizFke lgk;d vfHk;Urk flfyax us ;g laHkkouk O;Dr dh fd lEHkor% Jh vthrflag Lo:iflag] j.kfot;flag dq-pafnzdk o dq-bUnzk ds ikl 1500 oxZ ehVj ls vf/kd tehu ;k Hkou lfgr tehu gksus dh laHkkouk gS Avr% mUgs /kkjk 38 ds uksfVl fn;s tk;s ftl ij lnke vf/kdkjh us lgefr O;Dr dh A lgk;d vfHk;Urk us iqu% jftLVkj ls fjVZu izkIr gksus u gksus dh iqf'V ds fcuk vijk/k gksus dk Kku gksuk laHko ugh Fkk A ijUrq ;g iqf'V ugh gks ldh o fn- 26&12&77 dsk lgk;d vfHk;Urk us iqu% vyx ls uksfVl tkjh djus ds vkns'k fn;s A rnUrj dkxtkr iqu% 2&1&78 dks gh iqu% fey ikVhZ ,oa mlh jkst lHkh i{kdjkUr vfHk;qDrx.k dks fjVZu izLrqr djus ds uksfVl fn- 2&1&78 tkjh fd;s x;s] tks rkehy gksdj vfHk;qDrx.kks dh vksj ls fn- 2&1&78 dh nj[okLr }kjk fjVuZ nsus ds fy, 15 fnu dk le; ekaxk A rnUrj vUrr% foi{kh vfHk;qDrx.k us viw.kZ fjVZu fn- 28&2&78 dk l{ke vf/kdkjh ds lkeus izLrqr dj fn;k A mDr viw.kZ fjVZu dj uksfVlst ds ckn Hkh vfHk;qDrx.k us iwjk ugh fn;k gS A vfHk;qDrx.k us iwjk ugh fn;k gS AvfHk;qDrx.k }kjk fn;s x;s bl vijk/k dk vfHk;ksx dh loZizFke Kku 2&1&78 ;k fn- 6&1&78 dks gqvk A vr% vfHk;ksx i= vanj e;kn is'k gqvk gS Ablds vfrfjDr vijk/k Continuing offence gS blfy, Hkh bLrxklk vanj e;kn izLrqr gS A

16. A perusal of the above para would got to show that the position on 2-1-78 was almost the same as it was on 16-5-77 except that the notices asking the petitioners to file the returns have been directed to be issued. Therefore, it cannot be said that it was only on 2-1-78 that the competent authority came to know of the commission of the offence by the petitioners.

17. As a matter of fact, the question whether the petitioners hold land in excess of the ceiling limit and were bound to furnish the statements or returns under Section 6(1) of the Act has been decided by the competent authority only 16-12-83 and it has been clearly found by him that the petitioners do not hold any land in excess of the ceiling limit and the proceedings under Section 6(1) of the Act have been dropped. It is not disputed by the learned public prosecutor that the proceedings have thus been dropped by the competent authority. It is stated at the bar by the learned Counsel for the petitioners that the State has not challenged this order of the competent authority dated 16-12-83. When the competent authority has thus come to the conclusion that the petitioners do not hold any land in excess of the ceiling limit and the proceedings under Section 6(1) of the Act have been dropped, the question of the petitioners filing the returns under Section 6(1) of the Act losses its significance because it is only a person holding land in excess of the ceiling limit who is bound to furnish the statement under Section 6(1) of the Act and if the petitioners were not bound to furnish the statements, they could not be held guilty of offence under Section 38 of the Act, and, therefore, the very basis of the prosecution disappears and the proceedings deserve to be quashed.

18. It may of course be mentioned that if at any time in any proceedings the order of the competent authority dated 16-12-83 is set aside and it is found that the petitioners held land in excess of ceiling limit the competent authority will not be debarred from the filing of the complaint.

19. In these circumstances this application is allowed and the order of the learned Addl. Sessions Judge No. 1, Jodhpur dated 27-10-83 and that of the learned Judicial Magistrate No. 4, Jodhpur dated 7-8-81 are set aside.


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