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Akshoy Kumar Roy Vs. Lal Mohan Mazumder - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Case NumberCriminal Revn. No. 316 of 1964
Judge
Reported inAIR1969Cal161
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 195(2), 209(1), 211, 212, 213, 436 and 437; ;Unauthorised Occupation of Land Act, 1951
AppellantAkshoy Kumar Roy
RespondentLal Mohan Mazumder
Appellant AdvocateS.S. Mukherjee and ;Nirmal Kumar Ganguly, Advs.
Respondent AdvocateChintaharan Roy and ;Arun Kishore Das Gupta, Advs.;Sisir Kumar Basu, Adv.
Cases ReferredNasimullah v. Emperor
Excerpt:
- .....petitioner under section 209 (1) of the code of criminal procedure. the opposite party moved the sessions judge against this order of discharge and an additional sessions judge set aside the order of discharge and directed the magistrate to commit the petitioner to the court of session to stand his trial under sections 467 and 471 of the indian penal code. the petitioner has obtained this rule against this order of the learned additional sessions judge.2. the allegations made by the opposite party in the petition of complaint are as follows: the petitioner forged a kobala purported to have been executed in his favour by one jaynal abedin and sot it registered and thereafter used it in a proceeding before the 'competent authority' under the rehabilitation of displaced persons and.....
Judgment:

R.N. Dutt, J.

1. On the complaint of the Opposite Party, the petitioner was summoned under Sections 467 and 471 of the Indian Penal Code. There was an enquiry under Chapter XVIII of the Codeof Criminal Procedure and the Magistrate holding the enquiry, discharged the petitioner under Section 209 (1) of the Code of Criminal Procedure. The opposite party moved the Sessions Judge against this order of discharge and an Additional Sessions Judge set aside the order of discharge and directed the Magistrate to commit the petitioner to the Court of Session to stand his trial under Sections 467 and 471 of the Indian Penal Code. The petitioner has obtained this rule against this order of the learned Additional Sessions Judge.

2. The allegations made by the opposite party in the petition of complaint are as follows: The petitioner forged a Kobala purported to have been executed in his favour by one Jaynal Abedin and Sot it registered and thereafter used it in a proceeding before the 'competent authority' under the Rehabilitation of Displaced Persons and Eviction of Persons in unauthorised Occupation of Land Act, 1951.

3. The opposite party examined 7 witnesses on his behalf and the Magistrate holding the enquiry examined one witness as a Court witness. The Magistrate, thereafter, as we have said, discharged the petitioner under Section 209(1) of the Code. The learned Additional Sessions Judge has said that the committing Magistrate usurped the functions of the Sessions Court and in that view of the matter, set aside the order of discharge and directed the Magistrate to commit the petitioner for trial. It appears that the learned Magistrate did not take into consideration all the relevant materials on record before coming to his finding that there was no sufficient ground for commitment. We have looked into the relevant materials on record. It is not desirable for us to consider the materials in details at this stage but we are satisfied that there are sufficient grounds for committing the petitioner for trial.

4. But Mr. Mukherjee has raised two important points of law. Firstly he has urged that the 'competent authority' under the Rehabilitation of Displaced Persons and Eviction of Persons in Unauthorised Occupation of Land Act, 1951 is a 'Court' within the meaning of Section 195 (2) of the Code of Criminal Procedure and since there is no complaint made by the 'competent authority' -- the allegation being that a forged document was used in a proceeding before it -- the cognizance taken on the basis of the complaint made by the opposite party was not legal and the subsequent proceedings were all invalid. The answer to this contention turns on the question as to whether the 'competent authority' under the said Act is a 'Court' or not.

'Competent Authority' has been defined in the Act as follows:

'Competent Authority means a judicial officer not below the rank of a District Judge appointed by the State Government in consultation with the High Court by notification in the Official Gazette, to perform the functions of a Competent Authority under this Act * * *.'

Mr. Mukherjee has argued that the Competent Authority is a Judicial Officer. Mr. Mukherjee has further argued that there is a provision for appeals against the orders of the Competent Authority and the appeal lies to a Tribunal appointed by the State Government consisting of three persons including a Chairman, who shall be a person who is or has been or is eligible to be a Judge of a High Court. Mr. Mukherjee has submitted that under the Rules framed under the Act the Competent Authority has been empowered to exercise some of the powers exercisable by a Court under the Code of Civil Procedure. He has, therefore, contended that the 'Competent Authority' is a Court within the meaning of Section 195 (2) of the Code. We are unable to accept this contention. An essential feature of all Courts is 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. The Rehabilitation of Displaced Persons and Eviction of Persons in Unauthorised Occupation of Land Act, 1951 was enacted to provide for the rehabilitation of displaced persons and eviction of persons in unauthorised occupation of land and for certain other matters connected therewith. This Act was enacted in the wake of the communal disturbances during which many such unauthorised occupation took place. The competent authority was set up as a unit of the Revenue Department of Government for the purpose of eviction of the persons in unauthorised occupation and for re-settlement of the original occupation. It was not set up as an independent Judicial Tribunal for the purpose of administering justice according to ordinary judicial principle but for the purpose of putting into effect the policy of a department of Government. The purpose was to oust the jurisdiction of the Courts which exist for determination of civil matters in accordance with ordinary legal rights of the parties concerned. It must, therefore, be regarded as an agent of the State Government vested with certain legal powers for a definite purpose and it cannot be regarded as a 'Court' within the meaning o; Section 195 (2) of the Code of Criminal Procedure. This view finds support in Hari Charan Kundu v. Kaushi Charan Dey, reported in 41 Cri LJ 662= (AIR1940 Cal 286). This view also finds support in the Supreme Court decision in Jagannath Prasad v. State of Uttar Pradesh, reported in : [1963]2SCR850 , where the Supreme Court held that a Sales Tax Officer is not a 'Court' within the meaning of Section 195 (2) of the Code.

5. Mr. Mukherjee's other point is that under Section 437 of the Code of Criminal Procedure the Sessions Judge cannot direct the Magistrate to straightway commit the accused to the Court of Sessions. He has referred to Sections 211, 212 and 213 of the Code and has argued that even after the order of the Sessions Judge, the Magistrate is to frame a charge under Section 210 of the Code and then follow the procedure under Sections 211, 212 and 213 of the Code. If the Sessions Judge directs the Magistrate to straightway commit the accused to the Court of Sessions, the accused will be deprived of his rights under Sections 211, 212 and 213 of the Code. Mr. Mukherjee has particularly, referred to Sections 212 and 213 (2) of the Code. He has submitted that even after a charge is framed under Section 210, the accused has the right to have his witnesses examined and the Magistrate, may under Section 213 (2) even cancel the charge and discharge the accused. But if the Sessions Judge directs the Magistrate to straightway commit the accused to the Court of Sessions, the accused will be deprived of this right. He has referred to the decision in Nga Myaing v. Emperor, reported in 26 Cri LJ 1106=(AIR 1925 Rang 82), where the Rangoon High Court said that the Committing Magistrate was to follow the provisions of Sections 211, 212 and 213 of the Code even when the High Court directs the accused to be committed to the Court of Sessions. There in that case the accused was convicted by a Magistrate but the conviction was set aside by the High Court, which directed the accused to be committed to the Court of Sessions. The Magistrate thereupon followed the procedure of Chapter XVIII of the Code over again but the High Court held that this was not necessary; what the Magistrate should have done Was to frame a charge and explain to the accused requiring him to give in his list of witnesses and examine, if he thought fit any of those witnesses who had not already been examined and then write a short formal order of commitment. There In that case there was no order under Section 437 of the Code directing the Magistrate to commit the accused and there was no proceeding under Chapter XVIII of the Code. The Rangoon case, therefore, does not assist as much in the present case. We have a Single Bench decision of our own Court specifically on this point Radha Kanta Roy v. State,reported in ILR (1957) 2 Cal 742. There in that case as in this case the accused was discharged under Section 209 (1) of the Code but the Sessions Judge set aside that order and directed committment of the accused under Sections 437 of the Code. It was urged before Debabrata Mookerjee, J. that the direction of the Sessions Judge involved a fresh recourse to the procedure prescribed under Chapter XVIII of the Code from the point reached by Section 210 of the Code. Debabrata Mookerjee, J. however, held that when a Sessions Judge directs the Magistrate to make a commitment under Section 437 of the Code the Magistrate is not required to follow the procedure laid down under Sections 211, 212 and 213 of the Code. His Lordship said that an order directing commitment under Section 437 of the Code is a direction for commitment on the matters already on record. There is therefore no further scope for the play of magisterial discretion to let in fresh matter or evidence. His Lordship further pointed out that if the Magistrate is even after this direction required to follow Sections 211, 212 and 213 of the Code that would result in leaving the order of commitment made by the Judge in a fluid or rather precarious state; it would then be liable to be revised by the Magistrate which may in some cases, even lead to reversal of the order made by the Judge. Such a consequence could never have been contemplated by the Legislature. With these reasons we respectfully agree. Mr. Mukherjee has however argued that in that case Sections 211, 212 and 213 would become nugatory. We should however point out that Sections 211, 212 and 213 of the Code are there in the Code to be followed by the Magistrate when the commitment is under his orders but when a superior Court, empowered to direct commitment applies his mind to the materials on record and directs the Magistrate to make the commitment under Section 437 of the Code there is no longer any question of following the subsequent stages of the procedure which has been laid down for the Magistrate when he is himself to decide whether to commit or not. Section 437 of the Code empowers the Sessions Judge to do either of two things to direct further enquiry or order the accused to be committed for his trial. Mr. Mukherjee has referred to the decision of Yorke, J., in Nasimullah v. Emperor, reported in 42 Cri LJ 536=(AIR 1941 Oudh 409) where Yorke, J., has said that Section 436 of the Code covers 'discharge' under Sections 203, 204, 253 or under Section 209. But Section 437 covers discharge under Section 213 (2) of the Code. We regret, we cannot agree with this limitation of the scope of Section 437of the Code. Section 436 of the Code covers all orders of discharge, be it under Sections 203, 204, 253, 209 or under S. 213(2). Under Section 436 the Sessions Judge has the power to direct further enquiry in such matters. But if the case is one which is exclusively triable by the Court of Session, the Sessions Judge has been given a further power namely, the Sessions Judge can order the accused to be committed for trial instead of directing a fresh enquiry. The use of the words 'instead of definitely has reference to the power given to the Sessions Judge under Section 436 of the Code to direct further enquiry. Thus we hold that Section 436 of the Code covers all types of discharge and the Sessions Judge has power to direct further enquiry in such matters. But when the case is exclusively triable by a Court of Sessions, the Sessions Judge has an additional power, that is, he can order the accused to be committed for trial. Moreover the facts of Nasimullah's case are also different. There the Magistrate was holding the trial under the warrant procedure. He framed certain charges; the Sessions Judge was moved for additional charges which would make it triable exclusively by the Court of Session and the Sessions Judge straightway directed commitment for trial under Section 437 of the Code. Yorke, J., held that that was not the proper stage for the Sessions Judge to interfere and so set aside that order. Thus that was a case where the Magistrate did not follow the procedure under Chapter XVIII of the Code. Then again, Yorke, J., has not said in that case that when a Sessions Judge directs the Magistrate to commit the accused for trial, the Magistrate is even then required to follow the procedure under Sections 211, 212 and 213 of the Code. We are therefore, unable to accept Mr. Mukherjee's contentions.

6. In the result, the Rule is discharged. Let the records be sent down at once. Let the trial be expedited as far as possible.

N.C. Talukdar, J.

7. I agree.


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