Faujdar Rai vs Emperor

Mullick, J.—This is an application in revisions against a complaint made by the Collector of Champaran on 23rd February 1925, u/s 476, Criminal P.C., against the petitioner Faujdar Rai for his prosecution for offences under Sections 471 and 193, I.P.C. It appears that on 1st July 1924, the petitioner filed an application for the commutation of his rent u/s 40, Ben. Ten. Act, before the Sub-Deputy Collector of Champaran. On the same day he filed a patta alleged to have been given to him by the opposite party Reoti Raman Ojha. On 5th August the petitioner was examined and the patta was tendered in evidence. On 6th August the opposite party took a certified copy of the patta. On 20th August the parties having come to an arrangement, the commutation case was withdrawn by the petitioner. On 26th August the opposite party asked the Sub-Deputy Collector not to return the patta to the petitioner; but by that time it had already been taken back. On 11th September the opposite party asked the Court to direct the prosecution of the petitioner for offences under Sections 471 and 193, I.P.C. but the Sub-Deputy Collector after inquiry refused the application.

On appeal the Collector set aside the order of the Sub-Deputy Collector and, on 23rd February 1925, he made a formal complaint u/s 200, Criminal P.C., to the Sub-Divisional Magistrate of Motihari for the prosecution of the petitioner.

The petitioner thereupon appealed to the Divisional Commissioner; but he on 30th March 1925, held that no appeal lay.

Now the first question is whether the High Court has any jurisdiction to interfere with the order of the Collector. The Collector was clearly acting as a Revenue Court and he was exercising judicial powers in setting aside the order of the Sub-Deputy Collector and in making a complaint u/s 200, Criminal P.C. He was therefore subject to the superintendence of the High Court and his order is revisable u/s 115, Civil P.C. Ruktu Singh v. Emperor AIR 1921 Pat 94 is authority for this view.

The Court also has jurisdiction to interfere u/s 107, Government of India Act. Undoubtedly the Collector had jurisdiction in appeal to set aside the Sub-Deputy Collector''s order declining to make a complaint against the petitioner. But in arriving at this result the Collector did not apply his mind to the evidence in favour of the petitioner and therefore he has failed to exercise jurisdiction. Finding that the opposite party had withdrawn from the compromise and instituted criminal proceedings against him, the petitioner renewed his application for commutation and refiled the patta in the Sub-Deputy Collector''s Court on 14th November 1924. It is suggested that this is not the patta which was filed on 1st July but the Sub-Deputy Collector states definitely that it is the same patta and that it contains endorsements made by him on the former occasion; the learned Collector has not considered how a prosecution for forgery can be maintained when there is no trace of any alteration in the document. It is true that a certified copy was issued from the Collector''s office on 6th August in which the plot alleged to have been leased by the patta is described as within Khata No. 226, Khesra No. 1227, while in the original document it is said to be within Khata No. 191 and Khesra, No. 279 It is also true that in the certified copy the word "Nij" appears and in the original patta contains the word "Khas". The landlord denies that he ever gave any patta to the petitioner and his case is that the patta which is alleged to have been given in 1901, must be a forgery because the land is described by the number given to it at the revisional survey which took place long after 1901. It is suggested that after taking back the document on or about 20th August the petitioner altered the revisional survey numbers which were originally in the document into the numbers allotted to the land in the Cadastral Survey which took place before 1901.

Now there is no evidence to show that the numbers 226 and 1227 which appear in the certified copy have any relation to the numbers 191 and 279 which now appear in the patta and the object of altering the patta is therefore not clear. Moreover, if, as appears from the evidence, the opposite party was aware on 21st July, 1924, that the patta contained the Revisional Survey plots and was therefore a forgery, it is not understood why he did not bring that fact to the notice of the Sub-Deputy Collector on 5th August but allowed the case to be withdrawn on 20th August without demur; nor is there any explanation why only six days later he asked that the documents by the petitioner should be attached. In my opinion the suspicious conduct of the opposite party has not been considered.

The learned Collector relies upon the statements of his copying staff, but they do not really touch the case. It has not been shown that the document, which was given to the copying staff, was the document now under consideration, On the contrary as there are no marks of alteration on the document, the presumption is that it is not the document which was made over to the copying department for the issue of a certified copy. The petitioner suggests that the copying department were in conspiracy with the opposite party and intentionally inserted the revisional survey plot numbers instead of the numbers on the document, but without going so far it is possible to hold that the copying department were deceived and that they copied out a document which was neither filed nor exhibited by the petitioner.

There is another point which requires notice. The learned Collector was asked to proceed with the commutation case which is now pending in order that the question of the genuineness of the patta might be determined before the criminal law was put in motion against the petitioner; but his order is that the question whether in fact the petitioner is a tenant or not should first be determined by the Criminal Court. This is a reversal of the ordinary procedure and cannot be permitted. When a criminal offence is alleged to have been committed in the course of revenue or civil proceedings, the rule is that the facts, upon which the criminal offence is founded, as far as possible be finally determined in the Civil or Revenue Court. Here the refusal to try out the commutation case materially affects the criminal proceedings and amounts to a denial of the right of fair trial. This Court is therefore competent to interfere u/s 107, Government of India Act.

There is a third point raised, namely, that the learned Commissioner was wrong in declining to hear the appeal preferred by the petitioner. I think the contention must be accepted. Section 476-B, Criminal P.C., (appears to contemplate that if an appellate Court sets aside the order of the original Court, the party prejudicially affected has a right of appeal to the Court to which appeals from that appellate Court ordinarily lie. In this case therefore the Commissioner had jurisdiction to hear the appeal from the order of the Collector and to set it aside if necessary, and I am asked to direct that the criminal prosecution should not proceed till the Commissioner has disposed of the appeal. In my opinion it is not necessary to make any such order as I think I have jurisdiction to interfere u/s 115, Civil P.C., and Section 107, Government of India Act. I direct that the order of the Collector be set aside.

The application is allowed but without costs.