Beni Prasad vs State of Uttar Pradesh

H.N. Kapoor, J.—This petition has been filed u/s 482, Cr. P. C. for quashing the proceedings in Criminal Case No. 197 of 1975, Sarif v. Som Prakash and Ors., pending in the court of Judicial Magistrate Nakur, district Saharanpur in a case Under Sections 120B, 193 and 205 I. P. C. The opposite party Zarif filed a complaint to the effect that some persons had impersonated him before the Assistant Collector (Tahsildar) on 24-7-1974 by moving an application for issue of Bhumidhari Sanad and had wrongly obtained the Sanad by applying a fraud upon the Tahsildar. The complaint was filed against Beni Prasad petitioner and several persons on the ground that they had conspired and set up an imposter for obtaining Bhumidhari Sanad. These persons had identified that imposter as Zarif before the Assistant Collector. The learned Magistrate held enquiry u/s 202 Cr. P. C, and summoned the petitioner and the other accused persons Under Sections 120-B, 193 and 205 I. P. C, An objection was raised on behalf of the accused persons that u/s 195 Sub-section (b)(1) Cr. P. C. cognizance of the offence Under Sections 193 and 205 I. P. C. could not be taken by any court except on the complaint in writing of the court in relation to which such offence was committed u/s 195(1)(a)(iii). Similarly, complaint with regard to the conspiracy is to be filed by a public servant or any public servant to whom that public servant is a subordinate. The learned Magistrate rejected the objection on the finding that Assistant Collector was not a court. The Sessions Judge agreed with this finding and dismissed criminal revisions Nos. 15 of 1976 and 25 of 1976. The petitioner has, therefore, filed this petition u/s 482 Cr. P. C.

It is now well settled that this Court can interfere u/s 482 Cr. P. C. if the complaint suffers from some legal defect, such as want of sanction, complaint not by legally competent authority (Vide Smt. Nagawwa Vs. Veeranna Shivalingappa Konjalgi and Others, and R.P. Kapur Vs. The State of Punjab, .

Therefore, the only point that arises for decision is whether the Assistant Collector acting u/s 134 of the U. P. Z. A. and L. R. Act acts as a court. u/s 3 of the Indian Evidence Act, court is defined as follows :--

Court includes all Judges and Magistrates and all persons, except arbitrators, legally authorised to take evidence.

Rule 118 (1) of the U. P. Z. A. and L. R. Rules provides :

The Assistant Collector shall then scrutinise the application and may examine on them the applicant or any other person whose evidence he considers necessary.

Section 341 of the U. P. Z. A. and L. R. Act provides that CPC would be applicable to the proceedings under the Act unless otherwise expressly provided. It is nowhere provided that C. P. C, will not apply to the proceedings u/s 134 of the U. P. Z. A. and L. R. Act for the grant of Bhumidhari Sanad. Under Schedule II Item No. 6, an appeal is provided to the Commissioner against the order passed by the Assistant Collector u/s 134 of the U. P. Z. A. and L. R. Act. The Assistant Collector is, therefore, expected to make a judicial determination u/s 134 of the Act. It was so held by a Full Bench of this Court in the case of Banshidhar Vs. Smt. Dhirjadbari and Others, . It was held that he was required to pass a judicial order granting the certificate, It can, therefore, be said that the Assistant Collector acts as a Court while entertaining the application and passing judicial order granting the Bhumidhari Sariads u/s 134 of the U. P. Z. A. and L. R. Act.

In this connection I may refer to the case of Shri Virindar Kumar Satyawadi Vs. The State of Punjab, . In that case it was held that returning officer acting u/s 36(2) of the Representation of the People Act does not act as a court but the Election Tribunal acts as a Court. It was held 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.

In my opinion, there can be no doubt that the Assistant Collector, acting u/s 134 of the U. P. Z. A, and L. R. Act, possesses all the attributes of a Court.

The Magistrate, therefore, could have taken cognizance only on the basis of a complaint filed by the Assistant Collector and not on the basis of the private complaint. As such cognizance was barred u/s 195, Cr, P. C.

Learned Counsel for the opposite party has argued that great injustice is likely to result if the accused persons are not prosecuted. According to him one of the accused persons is a peon attached to the court of the Assistant Collector and, as such, the Assistant Collector may be reluctant to the a complaint against him. It is certainly a serious matter if the Assistant Collector is shielding such a person simply because he is peon attached to his Court, It will be open to the complainant to bring the matter to the notice of the court to which the Assistant Collector is subordinate as that Court can also file complaint u/s 195 Cr. P. C. But this consideration alone cannot be sufficient for entertaining the present complaint filed by the complainant as its cognizance is barred u/s 195 Cr. P. C.

In the result, the petition is allowed. The complaint and the entire proceedings pending in case No. 197 of 1975, Sarif v. Som Prakash pending in the Court of Judicial Magistrate Nakur, district Saharanpur, are quashed.