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Harbans Lal Bali and ors. Vs. Kulbhushan Bali - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtJammu and Kashmir High Court
Decided On
Judge
Reported in1973CriLJ256
AppellantHarbans Lal Bali and ors.
RespondentKulbhushan Bali
Cases ReferredIn Karunakar v. State of Mysore
Excerpt:
- .....was distinguishable and as the mutation proceedings were conducted by a tehsildar who was only a revenue officer and not a revenue court therefore he was not barred from taking cognizance of the case. in view of the fact that the point involved a substantial question of law, it was referred by me to a division bench and the case has therefore, been heard by us.3. the main point that falls for determination in this case is as to whether a tehsildar conducting mutation proceedings under the provisions of the jammu and kashmir land revenue act can be said to be a revenue court within the meaning of section 195(1)(b) of the criminal p.c. read with section 476 of the code.4. section 195(1)(b) of the code runs thus:of any offence punishable under any of the following sections of the same.....
Judgment:

S. Murtaza Fazl Ali, C.J.

1. This is a reference made by the Addl. Sessions Judge Srinagar recommending that the proceedings taken by the C.J.M. Srinagar be quashed and the complaint filed by the non-applicant. Kulbhushan, before him be dismissed. The reference arises in the following circumstances.

2. On 11.11.1970 the non-applicant Kulbhushan filed a complaint under Sections 199 and 200 R.P.C. against Harbans Lal alleging that the accused persons had given false declaration before the Tehsildar while he was making mutations in respect of the land referred to In the complaint. The learned Magistrate recorded the statement of the complainant on solemn affirmation and after perusing the documents and the summary of the evidence given before him. found that a prima facie case under Sections 199/200 of the Ranbir P.C. was made out against the accused, and accordingly he issued warrants of arrest against them. The case was then transferred for disposal to the Judge. Small Causes Court. Srinagar. The accused went up in revision to the Addl. Sessions Judge on the ground that as the offences under Sections 199/200 Ranbir P.C. alleged to have been committed by them were committed before the Tehsildar who was a Court within the meaning of Section 195(1)(b) of the Criminal P.C. therefore the complaint could not be entertained unless it was made by the Court concerned. The contention raised by the accused appears to have found favour with the Addl. Sessions Judge who has made a reference for quashing the proceedings against the accused, on the ground that as the complaint had not been filed in accordance with the provisions of Section 195(1)(b) of the Criminal P.C. the trial Court had no jurisdiction to take any cognizance of the offences. The learned Judge has mainly relied on a decision of the Allahabad High Court in Har Prasad v. Hans Raj : AIR1966All124 . We might mention here that when the Sessions Judge called for an explanation from the trial Court it explained that the decision In. : AIR1966All124 (Supra) was distinguishable and as the mutation proceedings were conducted by a Tehsildar who was only a Revenue Officer and not a revenue Court therefore he was not barred from taking cognizance of the case. In view of the fact that the point involved a substantial question of law, it was referred by me to a Division Bench and the case has therefore, been heard by us.

3. The main point that falls for determination in this case is as to whether a Tehsildar conducting mutation proceedings under the provisions of the Jammu and Kashmir Land Revenue Act can be said to be a revenue Court within the meaning of Section 195(1)(b) of the Criminal P.C. read with Section 476 of the Code.

4. Section 195(1)(b) of the Code runs thus:

of any offence punishable under any of the following sections of the same Code, namely Sections 193, 194, 195, 196, 199, 200, 205, 206, 207, 208, 209, 210, 211 and 228 when such offence is alleged to have been committed in, or in relation to. any proceeding in any Court, except on the complaint in writing of such Court or of some other Court which such Court is subordinate.

Section 195(2) which defines 'Court' runs thus:

In Clauses (b) and (c) of Sub-section (1). the term 'Court' includes a Civil. Revenue or Criminal Court but does not include a Registrar or Sub-Registrar under the Registration Act. 1877.

A perusal of this section clearly indicates that the cognizance of an offence by a Court is completely barred, unless the conditions mentioned in Section 195(1)(b) of the Code are complied with. In other words the section requires that where an offence falls within the sections of the Ranbir P.C. enumerated in Section 195(1)(b) of the Criminal P.C. and where such an offence is committed in any proceeding in any Court, then cognizance can be taken only on the written complaint of that Court and in no ether way.

5. In the instant case it is not disputed that the offence alleged against the accused did fall within the purview of the offences mentioned in Section 195(1)(b) of the Criminal P.C. but it has yet to be considered whether the Tehsildar before whom the offences were committed constituted a Court as contemplated by Section 195(1)(b) as amplified in Sub-section (2) of the section. The Point does not appear to be free from difficulty and there is a serious divergence of Judicial opinion on the point. The word 'Court' has now come to assume a well. known legal significance and postulates two essential conditions:

(1) That the authority concerned must be in a position to decide effectively the rights of the parties.

(2) That the authority concerned must be in a position to give a definitive Judgment which is binding on the Parties.

Applying these tests, it would be manifest that revenue officer conducting mutation proceedings cannot be said to be a Court. The essential requisites of a Court were laid down by a Division Bench of the Madras High Court in Mahabaleswarappa v. Gopalaswami AIR 1935 Mad 673-677 where their Lordships observed as follows:

To summarize 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 by 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 ia a Court.

6. This decision was fallowed In, : [1954]25ITR407(Mad) .

7. In Bibhuti Bhusan v. Dwarl kanath AIR 1943 Cal 574. 577 their Lordships of the Calcutta High Court observed as follows:

A Court must act judicially. The proceedings of a Court must be judicial proceedings in which matters are conducted according to the well known principles of judicial procedure. If a question is to be decided upon evidence there must be rules of how that evidence is to be given and rules regarding what would constitute evidence and what would not.

x x x xx x x xA Court pre. supposes a Judicial proceeding conducted according to definite rules of procedure.

The connotation of the word 'Court' as defined in Section 195(2) of the Criminal P.C. came to be interpreted by their Lordships in Virindar Kumar v. State of Punjab : 1956CriLJ326 as follows:

It may be stated broadly that what distinguishes a Court from a quasi-judicial tribunal is that it is charged with a duty to decide disputes in a judicial manner and declare the rights of parties in a definitive judgment. To decide in a judicial manner involves that the parties are entitled as a matter of right to be heard in support of their claim and to adduce evidence in proof of it.

And it also imports an obligation on the part of the authority to decide the matter on a consideration of the evidence adduced and in accordance with law. When a question therefore arises as to whether an authority created by an Act is a Court as distinguished from a quasi-judicial tribunal what has to be decided is whether having regard to the provisions of the Act it possesses all the attributes of a Court.

The Supreme Court in the aforesaid case has therefore, clearly laid down that the main test to be applied in order to determine whether an authority is a Court within the meaning of Section 195(1)(b) and (2) is to see whether having regard to the provisions of the Act concerned the authority possesses all the qualities and attributes of a Court. In that case their Lordships were considering whether a Returning Officer could be a Court within the meaning of Section 195(1)(b) of the Criminal P.C. and held that, the Returning Officer did not possess the attribute of a Court and r was therefore an administrative authority or at the most a quasi-judicial authority but not a Court.

8. In Ujjam Bai v. State of Uttar Pradesh AIR 1962 SC 1621. 1630 their Lordships while defining the characteristic attributes of a Court observed as follows:

The characteristic attribute of a judicial act or decision is that it binds, whether it be right or wrong. An error of law or fact committed by a judicial or quasi-judicial body cannot, in general, be Impeached otherwise than on appeal unless the erroneous determination relates to a matter on which the jurisdiction of that body depends.

9. In Lalji Haridas v. State of Maharashtra : 1964CriLJ249 their Lordships noticed the effect of the amendment of the Criminal P.C. in India in 1923 by substituting the word 'includes' and observed as follows:

Section 195(2) which was added in 1923 when the earlier Section 195 was substantially amended, provides that in Clauses (b) and (c) of Sub-section (1) the term 'Court' includes a Civil. Revenue or Criminal Court, but it does not include a Registrar or Sub-Registrar under the Indian Registration Act, 1877..The only point of interest to which we may incidentally refer is that this sub. section gives an inclusive, though not an exhaustive definition and takes within its purview not only Civil and Criminal Courts, but also Revenue Courts, while excluding a Registrar or Sub. Registrar under the Indian Registration Act.

Thus on a careful consideration and analysis of these decisions it would appear that the following conditions must be satisfied before an authority can be termed as a Court within the meaning of Section 195(1)(b) of the Criminal P.C.

(1) That the authority must be in a position to decide the rights of the Parties effectively.

(2) That mere performance of quasi. judicial functions is not enough, but the Court must be in a position to give a definitive judgment which must be binding on the parties.

(3) That the authority must adopt a procedure which is purely judicial and where the parties are in a position to present their cases as a matter of right.

10. It seems to us that with the advent of democracy in our great country the needs of the society have expanded considerably as a result of which a large number of authorities and Tribunals have come into existence, some of whom exercise quasi. judicial or judicial functions but not all such authorities can be said to be 'Court' as contemplated by Section 195(1)(b) of the Criminal P.C.

11. As In the instant case we are concerned with the question as to whether or not the Tehsildar was a Revenue Court it will be necessary to refer to certain provisions of the Revenue Acts, namely, the Jammu and Kashmir Land Revenue Act and the Tenancy Act. So far as the Land Revenue Act is concerned. Section 3(12) defines a revenue officer as one having authority under the Act to discharge the functions of a Revenue Officer under that provision. This definition therefore clearly postulates that the Revenue officer performs purely administrative or quasi. judicial functions and does not become a Court by any stretch of imagination. Section 6 of the Land Revenue Act gives the class of Revenue Officers who are the Financial Cornmr., the Divisional Commr.. the Collector the Assistant Collector of the first class and the Asstt. Collector of the second class. Section 26 is the main provision which confers powers on the Tehsildar to make an entry in the register of mutation. This section runs thus:

If during the making, revision or preparation of any record or in the course of any inquiry under this chapter a dispute arises as to any matter of which an entry is to be made in a record or in register of mutations, a Revenue Officer may of his own motion, or on the application of any party interested but subject to the provisions of the next following section, and after such inquiry as he thinks fit including such summary enquiry into title as may be necessary, determine the entry to be made as that matter.

(Provided that the Government may be rules curtail limit, or restrict the power of any Revenue Officer or class of Revenue Officers to inquire into and dispose of any such case or class of cases). The final order passed by the Revenue Officer declaring who is the party best entitled to the property shall be subject to any decree or order which may be subsequently passed by any Civil Court of competent jurisdiction.

It was under this section that the Tehsildar in the present case was conducting mutation proceedings when a false declaration is alleged to have been made before him by the accused. A perusal of Section 26 clearly shows that it does not entrust to the officer any judicial functions. At the most the officer is only to hold an inquiry including a summary inquiry into the question of title and the last Part of Section 26 (Supra) clearly states that any decision arrived at by the Revenue Officer concerned would only be subject to an order passed by a Civil Court of competent jurisdiction. It is therefore dear that any order passed by a revenue officer under Section 26 is neither final so as to be binding on the parties nor can it amount to a definitive Judgment so as to decide effectively the rights of the parties.

12. Coming to the allied Act, namely, the Jammu and Kashmir Tenancy Act, there are some clear provisions in this Act which make a well knit distinction between revenue officers and revenue Courts. Section 83 clearly lays down that there shall be the same class of revenue officers under this Act as under the Land Revenue Act. Section 84 gives a list of applications and proceedings which can be disposed of by revenue officers. The various proceedings are classed into three groups relating to various matters which are not germane to the facts of the present case. The relevant portion of Section 85 of the Act runs thus:

(1) When a Revenue Officer is exercising jurisdiction with respect to any such suit as is described in Sub-section (3) of this section or with respect to an appeal or other proceeding arising out of any such suit, he shall be called a Revenue Court.

(3) The following suits shall be Instituted in, and heard and determined by Revenue Courts, and no other Court shall take cognizance of any dispute or matter with respect to which any such suit might be instituted....

Thus Sections 83 and 85 draw a clear distinction when revenue officers would be acting purely as revenue officers in their administrative capacity and when, (they would be acting as Courts, It is admitted on all hands in the present case that mutation proceedings do not fall under Section 85 of the Act se as to constitute a revenue officer into a Court. The important 'thing to notice is that where the Revenue Officers under the Act function as revenue Courts, the jurisdiction of the Civil Court is clearly barred. The Tenancy Act was passed by the legislature in the year 1980 (Bikramtt being Act II of 1980 and the Criminal P.C. was passed in 1989 being Act 23 of 1989. Thus when the legislature or His Highness passed 'the Criminal P.C. the legislative authority was fully aware of the distinction between a Revenue Officer and a Revenue Court in the Jammu and Kashmir Tenancy Act, which was passed 9 years, before. Even after 1989 the State legislature had made substantial amendments to the Criminal P.C. by Act 28 of 1957. Act 42 of 1966. Act 40 of 1966 and Act 20 of 1967 and if the intention of the legislature was 'that the word 'revenue court' should be given a wider meaning and its scope should be enlarged, then we would have found something in the words 'revenue courts' to indicate the same. The fact that despite the definite distinction made in the Tenancy Act of 1980 no amendment was made to the words 'revenue court' leads to the irresistible conclusion that the legislature intended that the authority in order to be a revenue court must be a Court which functions judicially and possesses all the requisites and attributes of a full-fledged Court. It is therefore, manifest 'that the distinction between a revenue officer and a revenue Court as drawn in the Tenancy Act was fully known to the legislature and if they intended that a revenue Court should include a revenue officer also, then we should have expected the legislature to add appropriate phraseology in Section 195(1)(b) of Sub-section (2) thereof so as to bring the proceedings before a revenue officer also within the purview and ambit of this section. The fact that the State legislature in spite of several amendments made in the Criminal P.C. after 1989 (when it was first passed) chose to maintain Section 195 of the Cr.P.C. in its present form clearly shows that the legislature intended that a revenue officer and a revenue Court were two distinct legal entities. This is an additional reason why we think that in the present position of the law in our State proceedings before a revenue officer do not constitute proceedings before a revenue Court so as to attract the application of Section 195(1)(b) of the Criminal P.C.

13. In view therefore of the state of law existing in our State if cannot be held that the Tehsildar conducting mutation proceedings was a revenue Court in the legal sense of the term.

14. In Nirmal Singh v. Rudra Partap Narayan Singh AIR 1926 PC 100. 103 their Lordships of the Privy Council pointed out the scope and nature of the inquiries made by the mutation authorities and observed as follows:

The perusal by their Lordships of the Judgment of the Court of the Judl. Commr, of Oudh. at page 482 of the record, leads their Lordships to think that its Judgment is to a great degree based on the mischievous but persistent error that the proceedings for the mutation of names is a judicial proceeding, in which the title to and the proprietary rights in immovable property are determined. They are nothing of the kind as has been pointed out times innumerable by the Judicial Committee. They are much more In the nature of fiscal inquiries instituted in the interest of the State for the purpose of ascertaining which of the several claimants for the occupation of certain denominations of immovable property may be put into occupation of it with greater confidence that the revenue for it will be paid.

15. These observations therefore, clinch the issue 'that proceedings for mutation are purely fiscal or administrative in nature and cannot be termed as judicial proceedings by any stretch of Imagination.

16. We would now deal with some of the authorities 'that have been placed before us for and against the view taken by the Addl. Sessions Judge. To begin with the learned Addl. S. J. relied on a decision of the Allahabad High Court in. : AIR1966All124 (Supra). This is a decision of a single Judge and is clearly distinguishable from the facts of the present case because the U.P. Land Revenue Act had enacted special provisions under which the proceedings before the Tehsildar were declared to be judicial Proceedings. In this connection the learned Judge observed as follows:

The orders passed by a Tehsildar In mutation proceedings can be agitated against before the Board. Section 234 of the Act gives power to the State Government and the Board to make rules prescribing the duties of a Tehsildar. defining classes of cases, matters, businesses, orders or proceedings which are to be deemed judicial or non. judicial respectively. In exercise of this power the State Government has issued a notification defining the mutation proceeding as judicial. In view of these provisions in the Land Revenue Act and also because the Tehsildar dealing with a mutation proceeding decides a Us by a definitive Judgment on the basis of evidence recorded in accordance with the Evidence Act. there can be no doubt that he is a link in the hierarchy of revenue Courts as envisaged under Section 195 of the Criminal P.C.

It is therefore clear that in view of the provisions of the U.P. Land Revenue Act the Tehsildar dealing with mutation proceedings decided a lis by a definitive Judgment which is not the case here. In these circumstances this decision is of no assistance to the accused.

17. Reliance was also placed on a decision of the Madras High Court in Queen Empress v. Munda Shetti (1901) ILR 24 Mad 121. 123 where their Lordships held that the Tehsildar constituted a revenue Court and observed as follows:

We agree with the Sessions Judge that the Tehsildar. when holding an enquiry as to whether transfer of the names in a land register should be made or not was a Revenue Court. He was authorized under Act III of 1869 (Mad) to receive evidence and to decide whether transfer should be made or not. He was therefore in our opinion a Tribunal empowered to deal with a particular matter and authorized to receive evidence bearing on that matter in order to enable him to arrive at a determination. (1890) ILR 17 Cal 872.

Their Lordships do not appear to have approached the question from a more exhaustive point of view and have not given any particular reason why the Tribunal was held to be a Court. Furthermore their Lordships were dealing with the Revenue Act of Madras which contained different provisions. Finally having regard to the tests laid down by the Supreme Court in the cases (Supra), the Madras decision cannot be said to be correctly decided.

18. A similar view was held in Lachman Prasad v. Emperor AIR 1930 Oudh 58 : 31 Cri LJ 679 where Stuart C. J. held that mutation proceedings were judicial proceedings and therefore a Tehsildar constituted a Revenue Court. This decision wag also given on the interpretation of the U.P. Land Revenue Act which had special provisions conferring judicial functions on revenue officers.

19. Similarly the Calcutta High Court in Lakshah Bor v Naranaraln Hazra AIR 1921 Cal 260 (2) and Phanindar Singh v. Emperor (1913) ILR 40 Cal 465 : 14 Cri LJ 139 held that a Collector acting under Section 69 of the Bengal Tenancy Act performed the functions of a Court. These decisions are also based on the peculiar provisions of the Bengal Tenancy Act which are essentially different from the Tenancy Act of our State.

20. On the other hand, a Single Bench decision of the Lahore High Court comprising Shah Din J. in AIR 1915 Lah 250 : 16 Cri LJ 785 Emperor v. Lehna Singh observed as follows:

Section 4 Clause (14) of the Punjab Tenancy Act draws a distinction between a Revenue Officer and a 'Revenue Court' and the distinction is clearly observed in the provisions of the Act that follow: and in Section 3, Clause (12) of the Punjab Land Revenue Act the expression 'Revenue Officer' as used in any provision of the Act. is defined as meaning:

a Revenue Officer having authority under the Act to discharge the functions of the Revenue Officer under that provision.

The Naib. Tehsildar before whom the bahi was produced on the 22nd April, 1915. was acting under the provisions of Sections 34 and 36 of the land Revenue Act and his proceedings were those of a Revenue Officer1 and not of a 'Revenue Court' within the meaning of Section 195(2) of the Criminal P.C.

21. Our State Tenancy Act Is based on the pattern of the Punjab Tenancy Act and therefore this decision is very relevant so far as the provisions of our Tenancy Act are concerned, and we fully agree with, the decision of Shah Din J. in the Lahore case AIR 1915 Lah 250 : 16 Cri LJ 785(Supra).

22. In Karunakar v. State of Mysore AIR 1963 Mys 153 : 1963 (1) Cri LJ 781. a Division Bench of the Mysore High Court pointed out that a Tehsildar while functioning under Section 3-A of the Madras Cultivating Tenants Protection Act could not be said to function as a Court. We are in complete agreement with the view expressed by the Mysore High Court.

23. For these reasons we are clearly of the opinion that a Revenue Officer conducting mutation proceedings under the provisions of the Land Revenue Act or even under the provisions of the Tenancy Act except where he is acting under Section 85 of the Tenancy Act. Is not a revenue Court as contemplated by Section 195(1)(b) of the Criminal P.C. It is therefore manifest that the learned Addl. Sessions Judge has taken an erroneous view of law that the complaint filed before the CJM was not maintainable in law. As the offence is alleged to have been committed before a Revenue Officer and not before a revenue Court there was absolutely no bar for the CJM in taking cognizance of the offences alleged and there is no reason to quash the proceedings initiated on the basis of a complaint filed by the complainant.

24. The result Is that the reference is rejected and the order of the CJM taking cognizance of 'the case is confirmed.

Mufti Bahauddin, J.

25. I agree with the lucid and exhaustive Judgment prepared by my lord, the Hon'ble Chief Justice and have nothing further to add.


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