Gurnam Singh Tehsildar 1st Grade, Amritsar vs Kartar Singh and another

Jai Singh Sekhon, J.—This petition is directed under the provisions of Section 482 of the Code of Criminal Procedure, 1973, by Shri Gurnam Singh, Tehsildar, for quashing the complaint dated 3rd October, 1987, Annexure P-1 and the order dated 12th November, 1987 passed by Sub Divisional Judicial Magistrate, Annexure P-2, summoning the Petitioner and two others to face trial for the offences under Sections 167/418/420/465/468 read with Section 34 of the Indian Penal Code.

Briefly, the factual matrix of the case is that Gurnam Singh, Petitioner, while posted as Tehsildar, Khanna, sanctioned mutation No. 2321 on 3rd July, 1986, with regard to the exchange of land belonging to Kartar Singh complainant and his brothers namely, Babu Singh and Naher Singh with Mewa Singh one of the accused, in collusion with Shri Pritpal Singh, Halqa Patwari. It is alleged by the complainant that he or his brothers never agreed to such exchange of land and that they never appeared before the Tehsildar or the Patwari for the sanctioning of this mutation. Kartar Singh filed the above referred complaint against Gurnam Singh Tehsildar, Pritpal Singh Patwari and Mewa Singh on 3rd October, 1987 after he failed to get any redress from the concerned Authorities.

The trial Court after recording the preliminary evidence of Kartar Singh (P. W. 1), Baldev Singh (P. W. 2), Bant Singh (P. W. 3), Jugraj Singh (P. W. 4), Mewa Singh (P. W. 5) and Mani Singh (P. W. 6), found prima facie case against the accused persons for the aforesaid offences and summoned them to face trial vide impugned order, Annexure P-2.

The main controversy in the present petition is whether the Tehsildar while sanctioning mutation u/s 34 of the Punjab Land Revenue Act, is a Judge or whether the protection of the provisions of Section 197 of the Code of Criminal Procedure, 1973 are attracted in this case for holding that the trial Court could not have taken cognizance of the offences, as the State Government was the appointing or the dismissing authority or whether the alleged offences were committed while acting or purporting to act in the discharge of the official duties.

I have heard the learned Counsel for the parties besides perusing the trial Court file. Admittedly, the offences under Sections 167/418/420/465/468 read with Section 34 of the Indian Penal Code were allegedly committed by Gurnam Singh Petitioner while acting or purporting to act in the discharge of his statutory duty imposed upon him under Sections 34-36 of the Punjab Land Revenue Act. Simply because the mutation was sanctioned without admission of Kartar Singh complainant or his brothers regarding the oral exchange of land with Mewa Singh accused, it cannot be said that the alleged misconduct of this Revenue Officer is not related to the above referred official acts. The judgment of the Supreme Court in Amrik Singh Vs. The State of Pepsu, , can safely be referred to in support of the proposition that if the act complained of is directly concerned with the official duties so that, if questioned, it could be claimed to have been done by virtue of the office, than sanction would be necessary under the provisions of Section 197(1) of the Code of Criminal Procedure, irrespective of the fact whether it was, in fact, a proper discharge of his duties, because that would really be a matter of defence on the merits, which would have to be investigated at the trial and could not arise at the stage of the grant of sanction, which must precede the institution of the prosecution.

The question then arises whether a Tehsildar can be removed from his post save by or with the sanction of the Government. In this regard, Rule 7 of the Punjab Tehsildars (Class II) Service Rules, 1984, framed by the Punjab Government under Articles 309 of the Constitution, clearly provides that the Financial Commissioner shall be the appointing authority. If that is so, then the appointing authority has also to be treated as the dismissing authority by necessary implication. Thus, absolutely there is no escape but to hold that the State Government does not figure in the removal of a Tehsildar from his office and that the Financial Commissioner, Revenue is the sole authority to do so.

Mr. G.S. Punia, learned Counsel for the Petitioner then tried to make out a case that while sanctioning mutation, a Revenue Officer is working as a Judge as defined in Section 19 of the Indian Penal Code, 1860 Reliance in this regard has been placed upon a decision of the Rajasthan High Court in Prabhu Doyal v. Milap Chand 1959 Cri. L.J. 82 and of the Madras High Court in S.C. Abboy Naidu Vs. Kanniappa Chettiar, . The learned Counsel for the complainant-Respondents on the other hand relying upon the decision of a Division Bench of this Court in The State of Punjab etc. v. Sham Kaur etc. 1971 Cur. L.J. 405 contended that a Revenue Officer while sanctioning mutation under Sections 34-36 of the Punjab Land Revenue Act is not acting as a Judge as he has no authority to record evidence on oath and does not finally settle the controversy between the parties. On the other hand, he maintained that these are summary proceedings for determining as to which landowner is liable to pay the land revenue to the State.

The judgment of the Rajasthan High Court in Prabu Dayal''s case (supra) is of no help in solving the controversy in hand as therein the Sarpanch of the Panchayat empowered with judicial powers under the Rajasthan Panchayat Act, was held to be a Judge and public servant within the meaning of Sections 19 and 21 of the Indian Penal Code. The judgment of the Madras High Court in S.C. Abbey Naidu''s case (supra) is also of no help to the Petitioner in the present case as in that case a President of Union Board although not a public servant yet while accepting and rejecting nomination papers under Rule 1 of the relevant Election Rules, was held to be a Judge as after scrutiny of nomination papers he undoubtedly gave a definite judgment in legal proceedings.

On the other hand, the Division Bench of this Court in Sham Kaur''s case (supra) had categorically held that a Tehsildar while sanctioning mutation is neither acting as a Judge within the meaning of Section 19, I.P.C or as a Court within the meaning of the provisions of Section 195 (1)(c) and (2) of the Code of Criminal Procedure. In that case, the Tehsildar had sanctioned mutation on the basis of will of the deceased. Karam Singh husband of the daughter of the deceased had filed a complaint. The Judicial Magistrate, Jagraon framed the charges under Sections 465, 467 and 471 read with Section 109 of the Indian Penal Code and committed the Tehsildar and others to the Court of Sessions for their trial. The learned Sessions Judge made a reference to the High Court for quashing the proceedings as cognizance had been taken by the Magistrate on a private complaint in spite of the fact that the offences alleged to have been committed during mutation proceedings presided over by a Revenue Officer. The Division Bench dismissed that reference by holding as under:

Sub-section (2) of Section 195 of the Code provides that the term ''Court'' in Clauses (b)(c) of Sub-section (1) includes a civil, revenue or Criminal Court but does not include a Registrar or Sub Registrar under the Indian Registration Act, 1877. These officers have been made an example as border line cases about which there could be two opinions as to whether they are Courts or not. This may appear to be an illustration which is to guide us in interpreting the term ''Court'' occurring in Clauses (b) and (c) of Section 195(1). To my mind, the Registrar or Sub-Registrar appointed under the Indian Registration Act has much better trappings of a Court than a revenue officer deciding mutation proceedings under the Punjab Land Revenue Act. The orders of Registrar or Sub Registrar under the Registration Act with regard to registration of documents can lead to serious legal consequences and the provisions of the Registration Act on the subject would be enforced by the Court. Orders of the revenue officers presiding over mutation proceedings are, however, made subject to the decision of Courts of general jurisdiction in view of the provisions of Sections 36(3) and 45 of the Punjab Land Revenue Act. The Registrar and Sub-Registrar are given the powers of enforcing or compelling the attendance of witnesses by Sections 36 to 39 of the Indian Registration Act and can avail of the ordinary process of the Civil Courts for the purpose. Sections 19 to 22 of the Punjab Land Revenue Act lay down a separate procedure for summoning of persons and the implication is that the provisions of the CPC with regard to summoning of witnesses are not applicable. Section 19(3) of the Punjab Act says that the person summoned is bound to state the truth but there is no provision in the Punjab Act for the administration of oath to the person summoned. In disputed cases of mutation, the revenue officer is supposed, in view of the provisions of Section 36(1) of the Punjab Act to determine the entry to be made after such inquiry as he thinks fit. The parties to the dispute do not appear to have the right of reasonable opportunity to produce all the evidence that they may like to produce. The revenue officer is, therefore, supposed to make only a summary inquiry which only satisfies him to the entry that he would make in the records of rights in accordance with the provisions of Section 37 of the Punjab Act. The parties are thereafter left to have the matter more fully gone into or thrahsed out in the Civil Courts. u/s 75(4) of the Registration Act, the Registrar can for the purpose of an inquiry u/s 74 summon and enforce the attendance of witnesses and to compel them to give evidence as if he were a Civil Court. He can order payment of costs of any such inquiry before him and can secure the realisation of these costs as if these had been awarded in a suit under the Code of Civil Procedure. This may imply that the Registrar can issue process of law and administer oath to the witnesses like a Civil Court. The revenue officer deciding mutation proceedings does not seem to enjoy all these trappings of a Civil Court. If the Registrar or Sub-Registrar is not to be treated as a Court within the meaning of Section 195(2) of the Code of Criminal Procedure then there is hardly any reason why a revenue officer with fewer trapping of a Court should be clothed with any higher authority.

In the light of the rule of law laid down by the Division Bench of this Court and keeping in view that a revenue officer is not empowered to administer oath under the law while recording statements of the witnesses in mutation proceedings under Sections 34-36 of the Punjab Land Revenue Act and that he does not give any definite judgment on the rights of the parties, there is no escape but to conclude that he was neither acting as a Court nor a Judge within the meaning of Section 19 of the Indian Penal Code. If that is so, no sanction of the State Government is required before taking cognizance of the offences against him by the trial Court.

For the foregoing reasons, there being no merit in this petition, it is hereby dismissed. The trial Court is directed to dispose of the case expeditiously.