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J.C. Galstaun Vs. Banku Behary Dhar - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1927Cal621
AppellantJ.C. Galstaun
RespondentBanku Behary Dhar
Cases ReferredDurga Das Bukhit v. Queen
Excerpt:
- .....this rule, should not be set aside on the ground that the magistrate has erred in holding that the land acquisition collector is a court and as such his sanction was necessary for a prosecution under section 207, indian penal code.2. the facts of the case are briefly these : the petitioner sought to prosecute the opposite party for having fraudulently claimed the compensation awarded in respect of premises no. 10, howe's lane, before the second land acquisition collector knowing that he had no right or rightful claim to such award intending thereby to prevent that money from being taken in execution of a decree or order which had been made or which he knew was likely to be made further by a court of justice in a civil court suit and the petitioner contended that thereby the opposite.....
Judgment:

Cuming, J.

1. This is a Rule granted by my learned brothers Mr. Justice Suhrawardy and Mr. Justice Mitter calling upon the Chief Presidency Magistrate to show cause why the order of the Fourth Presidency Magistrate discharging the accused, the opposite party in this Rule, should not be set aside on the ground that the Magistrate has erred in holding that the Land Acquisition Collector is a Court and as such his sanction was necessary for a prosecution under Section 207, Indian Penal Code.

2. The facts of the case are briefly these : The petitioner sought to prosecute the opposite party for having fraudulently claimed the compensation awarded in respect of Premises No. 10, Howe's Lane, before the Second Land Acquisition Collector knowing that he had no right or rightful claim to such award intending thereby to prevent that money from being taken in execution of a decree or order which had been made or which he knew was likely to be made further by a Court of justice in a civil Court suit and the petitioner contended that thereby the opposite party had committed an offence under Section 207, Indian Penal Code. The case proceeded for some time and a. certain number of witnesses were examined. Then the learned Magistrate Mr. H.K. De passed the following order:

This is a case under Section 207 Indian Penal Code. From the ruling cited before me I am of opinion that the Land Acquisition Collector's-Court is a competent Court and as such under Section 195(1)(b), Criminal P.C. without the sanction in writing of the Collector the complainant has no legs to stand upon. No sanction in writing of the Collector has been adduced in evidence. The prosecution has not called the Collector. I, therefore, discharge the accused, under Section 253, Criminal P.C.

3. I may here point out that Section 195, Criminal P.C. as it now stands contemplates not a sanction but a complaint by a public servant so far as Clause (a) is concerned or by a Court under Clauses (b) and (c). Apparently the amendment of the Code made in 1923 has escaped the notice of the learned Magistrate.

4. The matter has been somewhat further complicated by the explanation which has been submitted by the learned Magistrate in reply to the Rule. In this explanation the learned Magistrate apparently states that he held that the proceedings continued before the tribunal and that the tribunal was a Court and hence sanction was required. He does not state definitely whose sanction is required. But presumably it would be that of the tribunal. I need hardly say that if his contention is correct the Court who could alone complain would be the tribunal. I can only say that this explanation is at entire variance with his own order of the 27th January 1927. There he states that the Land Acquisition Collector's Court is a competent Court and so

without the sanction in writing of the Collector, the complainant has no legs to stand upon. No sanction in writing of the Collector has been adduced in evidence.

5. How possibly in his order the learned Magistrate could mean to refer to the tribunal I do not understand, unless the learned Magistrate did not realize the difference between the Land Acquisition Collector and the Improvement Tribunal.

6. I think, we must decide the Rule on the plain words as given in the Magistrate's order, namely, that no sanction has been given by the Land Acquisition Collector,

7. Mr. Chatterjee who has appeared in support of the Rule has argued that the Land Acquisition Collector is not a Court. Mr. Bose who has appeared in opposition to the Rule has argued that even if he is not a Court for the purpose of the Land Acquisition Act, he is a Court for the purpose of Section 195, Criminal P. C. The expression Court is nowhere defined in any of the Codes. Mr. Chatterjee relies on the case of Ezra v. Secretary of State [1905] 32 Cal. 605, with special reference to pages 619 and 621. This case went upon appeal from this Court to the Privy Council and the judgment of this Court (Mr. Justice Ameer Ali and Mr. Justice Stephen) is reported in pages 605 to 624 of the volume. At page 619 the learned Judges in considering the question as to whether the Land Acquisition Collector is or is not a judicial officer or Court states as follows:

He is, in no sense of the term, a judicial officer; nor is the proceeding before him a judicial proceeding. In this view we are supported by the decision of this Court in Durga Das Rukhit v. Queen-Empress [1900] 27 Cal. 820. The award which he makes does not possess any finality so far as the parsons interested are concerned, for under Section 18 any parson interested who his not accepted the award may within a certain time by written application to the Collector require a reference of the matter for the determination of the Court. This shows that so far as the Collector is concerned, he is not a Court.

8. And further at page 621 the learned Judges point out:

His 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.

9. Mr. Bose concedes for the sake of argument that so far as regards the Land Acquisition Act he may not be a Court; but so far as regards proceedings in that Court, he contends, he is a Court under Section 195, Criminal P.C. Mr. Bose points out that Section 195, Sub-section (2) now runs as fallows:

In Clauses (b) and (o) of Sub-section (1) the term 'Court' includes a civil, revenue or criminal Court,

10. Mr. Bose paints out that before the amendment of 1923 the word used was 'means.' Hence he contends that the section contemplates other Courts besides civil, revenue or criminal Courts. His contention is that a 'Court' means an authority who is empowered to take evidence and to decide a matter. In support of his contention he relies upon the case of Empress v. Narayan Ganpayya [1914] 39 Bom. 310. In that case the question was whether a mamlatdar was or was not a Court. The learned Judges in disposing of the matter remarked : 'I should describe him as a revenue Court,' but it matters very little whether you describe him in that way or as a civil Court the judicial resultis precisely the same in a matter of this kind. I say that he was a 'Court' for these reasons : he had power to summon witnesses, to take evidence, although it may be not to administer an oath to consider the evidence and to make a final order which might be an order of great importance and would be final unless changed by his superior on revision or appeal until there bad been a declaration of a civil Court which conflicted with it. I do not know whether that decision helps us much in the present case. Beading Section 475, Criminal P.C., together with Section 195, Criminal P.C., it is difficult to see what would be the Court other than civil, revenue or criminal Court contemplated by Section 195, Sub-section (2). Section 476 provides that any civil, revenue or criminal Court can in certain circumstances make a complaint to the Magistrate with regard to certain offences which are dealt with in Clauses (b) and (c) of Sub-section (1) of Section 195, Criminal P.C.

11. 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 Court. Therefore, it seems to ma 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, Criminal P.C. Whether Section 195. Sub-section (2) helps us much in determining the question whether the Land Acquisition Collector is or is not a Court, I am not very certain. But, after a, careful consideration I have come to the conclusion that he is not a Court. His function really is to ascertain on behalf of the Government what is the value of the property which the Government proposes to acquire and to make an offer to the party. In doing so he is allowed, as has been pointed out in the case of Ezra v. Secretary of State [1906] 32 Cal. 605, to import his own knowledge into the matter. In the case of Durga Das Bukhit v. Queen-Empress [1900] 27 Cal. 820 (with special reference to page 826) a question arose as to whether a Deputy Collector under the Land Acquisition Act was or was not a judicial officer or a Court. In that case the question was whether his sanction was or was not required under Section 195, Criminal P.C. and it was held that he could not be regarded as a Court.

12. The conclusion to which I have finally come is that the Land Acquisition Deputy Collector is not a Court and that he, therefore, could neither give sanction nor more correctly make a complaint under Section 195, Criminal P. C. so far as Section 207, Indian Penal Code, is concerned. His sanction or rather his complaint was not necessary for a prosecution under Section 207, Indian Penal Code.

13. That being so, the Rule must be made absolute. The order of discharge is set aside and the Magistrate is ordered to proceed with the case from the point at which he has discharged the accused.

Graham, J.

14. I agree.


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