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Hari Charan Kundu Vs. Kaushi Charan Dey - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Reported inAIR1940Cal286
AppellantHari Charan Kundu
RespondentKaushi Charan Dey
Cases ReferredMahabaleswarappa v. Gopalaswami Mudaliar
Excerpt:
- .....they are tribunals which have been created by a special statute for a special purpose and are not civil courts within the meaning of clause 16, letters patent md. abdulla shah coudhury v. giridhari lal : air1938cal448 ; ram krishna sukul v. ali newaj : air1938cal688 . further, they do not try suits of a civil nature and are not governed either by the provisions of the civil procedure code or by the terms of the bengal, agra and assam civil courts act. they cannot therefore be described as civil courts. it is, however, argued that the boards must be regarded as 'courts' in the wider meaning of that term because they are empowered to come to decisions with regard to certain matters to which the bengal agricultural debtors act expressly relates. the effect of the recent decisions on the.....
Judgment:

Edgley, J.

1. This rule arises with reference to a complaint filed against the petitioner and another person in the Court of the learned Sub-divisional Officer of Khulna with a view to their prosecution under Sections 465, 467, 471 and 193, Penal Code. The petitioner was a co-mortgagee in respect of certain property and he had applied to a Debt Settlement Board under Section 8, Bengal Agricultural Debtors Act, 1935, for the settlement of the debt owing to him. The allegation against him is to the effect that, in collusion with another person, he forged the thumb impressions of his co-mortgagees on the application. The debtor then filed a complaint in the Court of the learned Sub-divisional Officer of Khulna with a view to the prosecution of the petitioner and the person who is alleged to have assisted him in the forgery, but the learned Magistrate discharged both the accused persons on the ground that the Debt Settlement Board must be regarded as a 'Court' and there had been no compliance with the provisions of Section 195(1)(b) and (c), Criminal P.C. He further held that the prosecution must fail on account of non-compliance with the terms of Section 54, Bengal Agricultural Debtors Act. The learned Sessions Judge of Khulna was then moved in the matter. He adopted the view that the Debt Settlement Board could not be regarded as a 'Court' within the meaning of Section 195, Criminal P.C., and that accordingly no complaint under Section 195 (1)(b) and (c) was necessary in this case. He also held that Section 54, Bengal Agricultural Debtors Act, had no application in respect of the offences in connexion with which it was sought to prosecute the accused persons. He therefore directed a further enquiry into the case.

2. This Court has now been moved under Section 439, Criminal P.C., and it is contended on behalf of the petitioner (1) that the Board must be regarded as a 'Court' and this being the ease, the proposed prosecution is invalid in the absence of a complaint by the Board under Section 195, Criminal P.C., and (2) that, even if it be assumed that the Board is not a 'Court,' the sanction of the Collector was necessary under Section 54, Bengal Agricultural Debtors Act, before a prosecution could be instituted. In this connexion it is argued that, under the provisions of the Bengal Agricultural Debtors Act, Debt Settlement Boards possess all the essential attributes of 'Courts.' It is pointed out that, under Section 12 of the Act, the applicant may be examined on oath or affirmation, that under Section 16, the Board is vested with the powers of a Civil Court under the Code of Civil Procedure in connexion with the summoning and examining of parties and witnesses and the production of documents and that further, under Section 18 of the Act, a Board may determine questions relating to the existence and amount of debts 'after hearing the parties and considering the evidence produced.' It is further contended that Boards are empowered to make final orders regarding the amount of the debts recoverable from debtors and that the Act contains provisions under which the awards of a Debt Settlement Board may be executed. Machinery has also been provided by which appeals may be filed against orders of a Board and under Section 50 it has been pro-vided that proceedings under the Act should foe deemed to be judicial proceedings under Section 228, Penal Code. In support of the contention that Debt Settlement Boards are 'Courts' reliance is also placed upon the definition of the term 'Court' in the Evidence Act which is in the following terms : 'Court' includes all Judges and Magistrates, and all persons, except arbitrators, legally authorized to take evidence. This definition is however not very helpful in connexion with the present case because the definition of the word 'Court' in the Evidence Act has been framed only for the purposes of that Act which, under Section 45, Bengal Agricultural Debtors Act, has no application to Debt Settlement Boards in the absence of express provision to that effect. The Code of Criminal Procedure contains no definition of the expression 'Court' but it is provided in Section 4(2) of the Code that

all words and expressions used herein and defined in the Penal Code, and not hereinbefore defined, shall be deemed to have the meanings respectively attributed to them by that Code.

3. The only Court which is defined in the Penal Code is a 'Court of Justice' and the definition is in the following terms:

The words 'Court of Justice' denote a Judge who is empowered by law to act judicially alone, or a body of Judges which is empowered by law to act judicially as a body when such Judge or body of Judges is acting judicially.

4. In this connexion, it was held by this Court in Raghoobuns Sahoy v. Kokil Singh (1890) 17 Cal 872 and Nando Lal Ganguli v. Khetra Mohan Ghose (1918) 5 A.I.R. Cal 932 that the word 'Court' as used in Section 195, Criminal P.C., had a wider meaning than a 'Court of Justice' as defined in the Penal Code. If the definition of the expression 'Court of Justice' in the Penal Code be read in the light of the definition of the term 'Judge' in Section 19 and the illustrations to that Section, it will be seen that it is sufficiently wide to cover all Civil, Criminal and Revenue Courts. There are, however, other Courts for example, Tribunals of Election Commissioners, which are empowered to deal judicially with matters which may be referred to them and the question, therefore, arises whether Debt Settlement Boards can be regarded as 'Courts' in the wide sense in which that term has been used in Section 195, Criminal P.C. The decisions to which we have been referred do not contain any very precise definition of the term 'Court.' Bach case appears to have been decided with particular reference to the special features of the-tribunal the status of which was being discussed in those decisions. To give an exhaustive list of the attributes of a 'Court' for the purposes of Section 195, Criminal P.C., would be difficult if not impossible. The term may

include a tribunal empowered to deal with a particular matter and authorized to receive evidence bearing on that matter in order to enable it to arrive at a determination : Raghoobuns Sahoy v. Kokil Singh (1890) 17 Cal 872 at p. 875.

5. Such a criterion would, however, not afford an essential test of what is or what is not a 'Court.' As pointed out in Halsbury's Laws of England, Edn. 2, page 526:

A tribunal is not necessarily a Court in the strict sense of exercising judicial power because, (1) it gives a final decision; (2) hears witnesees on oath; (3) two or more contending parties appear before it between whom it has to decide : (4) it gives decisions which affect the rights of subjects; (5) there is an appeal to a Court; and (6) it is a body to which a matter is referred by another body. Many bodies are not Courts, although they have to decide questions, and in so doing have to act judicially, in the sense that the proceedings must be conducted with fairness and impartiality.

6. The judgment in Raghoobuns Sahoy v. Kokil Singh (1890) 17 Cal 872 is brief and not very helpful on the question of the real test that should be applied in deciding a question of this nature, but what seems to have impressed the learned Judges in that case was that, in their view, Sections 69 and 70, Ben. Ten. Act, imposed a duty upon the Collector in appraisement proceedings to come to a final judicial decision after taking such legal evidence as he considered necessary. On the other hand, it was held in Durga Das Rakhit v. Queen-Empress (1900) 27 Cal 820 that, in connexion with land acquisition proceedings, the Collector was not a 'Court' and this decision was followed in Ezra v. Secretary of State (1900) 32 Cal 605 because the Collector's determination was not a judicial act; he was acting merely as an agent of the Government to ascertain the value and to make a tender (p. 621).

7. On the other hand, it was held in Nando Lal Ganguli v. Khetra Mohan Ghose (1918) 5 A.I.R. Cal 932 that the tribunal constituted by the Calcutta Improvement Act (Bengal Act V of 1911) is a 'Court' within the meaning of Section 195, Criminal P.C. Further, Chaudhuri J., held in Bal Chand v. Tarak Nath (1915) 2 A.I.R. Cal 105, that the Registrar of the Presidency Small Cause Court, in deciding questions relating to the service of summonses, is a 'Court.' Again, in the case in Bibhuti Bhusan Adhikari v. Khem Chand : AIR1934Cal457 Mukerji and S.K. Ghose JJ., held that a Collector who holds a summary investigation under Section 14, Patni Regulation, is a 'Court' within the meaning of Section 195, Criminal P.C. The general principle on which those cases were decided is not altogether clear but the learned Judges appear to have held the opinion that the authorities in question were Courts because they were empowered to deal judicially with the matters which had been referred to them. The decision of Cuming and Graham. JJ., in J.C. Galstaum v. Banku Behary : AIR1927Cal621 adopted the view which had been taken in the judgment in Durga Das Rakhit v. Queen-Empress (1900) 27 Cal 820. In the course of his judgment in that case Cuming J. observed:

As far as can be seen Section 476 is the only Section which gives any Court powers to make a complaint. This Section seems to deal only with Civil, Revenue or Criminal Courts. Therefore, it seems to me that although the word used in Section 195, Sub-section (2) is 'includes', the Courts which can make a; complaint under that Section are restricted to the Courts which we find detailed in Section 476, Cr.P.C.

8. Although we are entirely in agreement with the learned Judge in the conclusion at which he arrives to the effect that the Land Acquisition Collector was not a 'Court', we do not agree that the scope of Section 195 as regards the making of complaints is restricted to the Courts detailed in Section 476, Criminal P.C. In this connection, we think that the law has been more correctly stated by Harrison J. in M.M. Khan v. Emperor (1931) 18 A.I.R. Lah. 662. In that case it was held that persons appointed as Special Commissioners under Act 37 of 1850 to hold an enquiry relating to public servants constituted a 'Court' within the meaning of Section 195, Criminal P.C., and, therefore, a complaint by them was necessary in connection with prosecutions in respect of the offences mentioned in Section 195(1)(b) of the Code. In the course of his judgment in that case the learned Judge observed:

It appears to me that Bilas singh v. Emperor : AIR1925All737 lays down the correct view of the position. The question to be decided was whether Election Commissioners were a Court. The decision was that they were not a Civil Court, but the complaint which they purported to make must be deemed to be one under Section 195(1)(b) by a Court 'in its wider meaning excluding a Civil, Revenue or Criminal Court.' The definition in this Section has been amplified, the word 'include' being substituted for 'means' in 1923. There are Courts outside the Criminal, Civil and Revenue Courts. The Election Commissioners constitute such a Court Bilas singh v. Emperor : AIR1925All737 . The Income-tax Commissioners, as hold in In re Nataraja Iyer (1913) 36 Mad. 72, arc such a Court, Similarly the Commissioners appointed under Act 38 of 1850 are such a Court and in just the same way as Election Commissioners are a Court. They do act in the narrow sense administer justice themselves but like the Election Commissioners they make a report as a result of their enquiry.

9. Debt Settlement Boards are certainly not Revenue or Criminal Courts. They are tribunals which have been created by a special statute for a special purpose and are not Civil Courts within the meaning of Clause 16, Letters Patent Md. Abdulla Shah Coudhury v. Giridhari Lal : AIR1938Cal448 ; Ram Krishna Sukul v. Ali Newaj : AIR1938Cal688 . Further, they do not try suits of a Civil nature and are not governed either by the provisions of the Civil Procedure Code or by the terms of the Bengal, Agra and Assam Civil Courts Act. They cannot therefore be described as Civil Courts. It is, however, argued that the Boards must be regarded as 'Courts' in the wider meaning of that term because they are empowered to come to decisions with regard to certain matters to which the Bengal Agricultural Debtors Act expressly relates. The effect of the recent decisions on the question of the general attributes of a 'Court' have been conveniently summarised by Curgenven J. in Mahabaleswarappa v. Gopalaswami Mudaliar (1935) 22 A.I.R. Mad. 673 at p. 677 as follows:

To summarise the effect of these decisions it would seem that we have to look, not to the source of a tribunal's authority, or to any peculiarity in the method adopted of creating it, (though it is undoubtedly a consideration that it derives its powers immediately or immediately from the Crown) but to the general character of its powers and activities. If it has power to regulate legal rights by the delivery of definitive judgments, and to enforce its orders by legal sanctions, and if its procedure is judicial in character, in such matters as the taking of evidence and the administration of the oath, then it is a 'Court.'

10. We are prepared to adopt the above summary as far as it goes but, in our judgment, particular emphasis should also be laid upon what we consider to be an essential feature of all Courts viz. that the tribunal in question must be one in which justice is judicially administered, and which is empowered to arrive at an independent judicial decision on legal evidence. Can it be said that the Boards constituted under the Bengal Agricultural Debtors Act are 'Courts' in this sense of the term? Prom the Preamble to the Bengal Agricultural Debtors Act it appears that the primary object of the Act was to make provision for the relief of indebtedness of agricultural debtors, and, for that purpose, Government are empowered under Section 3 of the Act to constitute Debt Settlement Boards. In cases in which applications have been made to these Boards for the settlement of debts the jurisdiction of the ordinary Courts is ousted under Sections 33 and 34 of the Act. The Boards do not frame their awards according to the rights which may have accrued to the contracting parties under the provisions in the Contract Act or the Transfer of Property Act, but, on the other hand, they are enjoined under Section 15 to use their best endeavours to induce parties to arrive at an amicable settlement and, under Section 19 they are empowered to order the settlement of debts in accordance with offers which they may consider to be fair and reasonable. Further, under the provisions of Section 45, the ordinary principles of the Evidence Act and the Civil Procedure Code do not apply to proceedings before the Boards. Sub-section (2) of Section 16 empowers Boards to receive mere information from persons who may be present and, this being the case, it is clear that, when the Board is directed under Section 18(2) of the Act to make orders 'after hearing the parties and considering the evidence produced' the expression 'evidence' is used not in the sense of evidence which would be legally admissible under the provisions of the Evidence Act but as referring to any material to which the Board may think fit to refer in arriving at its decision. Further, the procedure to be observed by the Boards is not the procedure laid down by the Civil Procedure Code but is prescribed by Government under rules framed under Section 55 of the Act. It is also provided in Section 42 that 'a Board shall in all proceedings under this Act, be subject to the control of the Local Government' and that the Boards may be inspected by a person appointed by the Local Government.

11. In our view the abovementioned provisions read in the light of the general scheme of the Act make it clear that Debt Settlement Boards are merely units of a department of Government, which has been constituted for the purpose of settling debts. They have not been set up as independent judicial tribunals for the purpose of administering justice according to ordinary judicial principles but for the purpose of putting into effect the policy of the Department of Government under which they function and which controls their procedure. Their purpose is to oust the jurisdiction of the Courts which have been set up by the Legislature for the decision of civil matters in accordance with the ordinary legal rights of the parties concerned. They must therefore be regarded as agents of the Local Government vested with certain legal powers for a definite purpose and they cannot be regarded as 'Courts' even within the wide meaning with which that expression is used in Section 195, Criminal P.C.

12. It is, of course, the general policy of the Legislature that precautions of some sort should be imposed on prosecutions in respect of offences such as those to which reference is made in Section 195, Criminal P.C., and it has therefore been laid down that prosecutions in respect of the offences mentioned in Section 195(1)(b) and (c) of the Code should only be undertaken on the complaint in writing of the Court concerned or of some other Court to which such Court is subordinate. In the case of such matters as the intentional making of false statements the requisite precaution is provided by Section 54, Bengal Agricultural Debtors Act, which provides that no prosecution for any offence under that Section may be commenced except by or with the permission of the Collector. The provision of this Section in the Act is in itself an indication that the Boards were not intended by the Legislature to be regarded as 'Courts,' and that the proceedings before these Boards were not intended to be judicial proceedings except for the limited purpose of Section 228, Penal Code. Had these tribunals been 'Courts,' a Section of this nature would not have been necessary as prosecutions in respect of the matters mentioned in Section 54 of the Act could have been instituted under the appropriate Section of Chap. 11, I.P.C., on the complaint of the Board concerned. It was however evidently due to the fact that these proceedings could not be regarded as judicial proceedings except for the purpose Section 228, I.P.C., nor the Boards as 'Courts' that it was found necessary to prescribe penalties in respect of certain acts which, if they had been done in connection with proceedings before Courts, would have been offences against public justice under Chapter 11, I.P.C.

13. Finally, it is argued that in any event the sanction of the Collector was required under Section 54 of the Act before the petitioner could be prosecuted in respect of the offences which he is alleged to have committed. The main intention of the complainant in this case is to prosecute certain persons in respect of a forged document under Sections 465, 467 and 471, I.P.C. If he had intended to proceed against them as regards any false statement contained in that document, the (sanction of the Collector would have been required under Section 54, Bengal Agricultural Debtors Act, but this Section has no application except in respect of the offences expressly mentioned therein. It therefore follows that no sanction under this Section was necessary as regards the complaint with a view to the prosecution in respect of offences under Sections 465, 467 and 471, I.P.C. However as regards the proposed prosecution under Section 193, I.P.C., the complaint was misconceived. We have already pointed out that proceedings before a Debt Settlement Board cannot be regarded as 'judicial proceedings' except for the limited purpose of Section 228, I.P.C., so it follows that no prosecution will lie under Section 193 of the Code for giving false evidence or fabricating false evidence in respect of such proceedings. This rule must therefore be made absolute in the following terms. The order of the learned Sessions Judge is affirmed in so far as it relates to the proposed prosecution under Sections 465, 467 and 471, I.P.C., but the proceedings will be quashed in respect of the order as regards the complaint; under Section 193, I.P.C.

Khundkar, J.

14. I agree.


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