Shamshul Haque and Others vs Abdul Mabood

B.L. Yadav, J.—This revision u/s 397/401 of the Code of Criminal Procedure, 1973, (for short the Code), is directed against the order dated 22-2-85 passed by the Vth Additional Sessions Judge, Basti, allowing the revision and setting aside the order dated 1-6-84 passed by the Munsif Magistrate, Basti in a case under Sections 467/468/419/420/120B of the IPC.

A complaint, against Shamshul Haque and others the present applicants, was filed disclosing offence under Sections 467/468/419/420/120B of the IPC. It was alleged that a document was filed in the Court of Naib-Tehsildar, Dumariaganj. The offence under the aforesaid sections was committed by the applicants by the time the document remained in the Court of Naib-Tahsildar. But when the document was filed in the Court of Naib-Tahsildar, the village, where the plots in dispute were situate, has come under consolidation operations and a notification u/s 4 of the U.P. Consolidation of Holdings Act, 1954, (for short the Act), was already issued. An application on behalf of the applicants was filed that as the complaint was filed before the Court of Naib-Tahsildar and the offence was committed during the continuance of those proceedings, hence the complainant has got no authority under law to file the complaint against the applicants and the complaint was barred by Section 195(1)(b) and (c) of the Code.

The learned Magistrate by order dated 1-6-84 allowed the application of the applicants and held that the complaint was barred by Section 195(1)(b) and (c) of the Code. Against that order a revision was filed before the Sessions Judge by the complainant and the same has been allowed and it has been held that as the notification u/s 4 of the Act has already been issued, hence the Naib-Tahsildar has no jurisdiction to entertain the application for mutation and even if the said mutation application was filed before the Naib-Tahsildar, that would not confer jurisdiction upon him and it would be deemed as if the mutation application was filed before a Court which has got no authority under law to entertain that application. The Court of Naib-Tahsildar cannot be said to be a Court within the meaning of Section 195 of the Code as it could not entertain the application for mutation. Against this order the present revision has been filed by the applicants (i.e. the opposite parties in the complaint).

Learned Counsel for the applicant urged that even though the application for mutation was filed at a time, when the village where land in dispute was situate, was under consolidation operation in pursuance of the notification u/s 4 of the Act, that could not have been decided in favour of either party in view of Section 5(2)(b) of the Act, rather it must have been ordered to abate, but for the purposes of Section 195 of the Code the Court of Naib-Tahsildar must be deemed to be a Court and private complaint would be barred by Section 195(1)(b) of the Code.

Learned Counsel for the opposite party, on the other hand, urged that the words ''no Court shall take cognizance of any offence specified u/s 195(1)(b) except on the complaint in writing of that Court'' obviously means that the Court in which document was filed must have jurisdiction to entertain the case of applicant and must have power to decide it finally on merits. Unless the Court has jurisdiction to decide it on merits, it could not be said to be a Court and private complaint cannot be barred.

Having heard the learned Counsel for the parties, the point for determination is as to whether the Court of Naib-Tahsildar can be said to be a Court after the issuance of notification u/s 4 of the Act. In fact, even though it can entertain an application for mutation, but it cannot decide it or pass a final order as in view of Section 5(2)(b) of the Act, the application would abate. In fact, the word ''Court'' has not been defined in the Code, rather it has been defined u/s 3 of the Indian Evidence Act to the effect that Court includes all judges and Magistrates and all persons, except arbitrators, legally authorised to take evidence. But this definition is not exhaustive. Otherwise also, the word ''Court'' means any person having jurisdiction to entertain a complaint, application or suit etc. and to decide the same. In case the Court has no power either to entertain or to pass a final order, it cannot be said that it has got some authority to entertain or to decide or to pass a final order.

In Raja Soap Factory and Others Vs. S.P. Shantharaj and Others, , it has been observed that by jurisdiction is meant the extent of power which is conferred upon the Court by its constitution to try proceedings, its exercise cannot be enlarged because an extraordinary situation requires the Court to exercise it.

In the instant case it has to be seen as to whether the Naib-Tahsildar before whom the application for mutation and correction of papers case was filed can be said to have jurisdiction to entertain that application and to decide it. In this connection it is pertinent to have the connotation of the word ''jurisdiction'' as observed in Halsbury''s Laws of England, IVth Edn. Volume 10, para 715 as follows:

By jurisdiction it meant the authority by which the Court has to decide the matters that are litigated before it or to take cognizance of matters presented in a normal way for its decision. The limits of this authority are imposed by statute, charter or commission under which the Court is constituted and may be extended or restricted by similar means. If no restriction or limitation is imposed, the jurisdiction is said to be unlimited. A limitation may be either as to grant or nature of matters and matters of which a particular Court has cognizance, or has to see over which the jurisdiction extends or it may partake of both the characters".

In American Jurisprudence, Second Edition, Vol. 32-A, para 1228, it has been observed as follows:

The jurisdiction is essentially an authority to decide a given case, one way or the other". (See Hagins v. Lavinea 415 US 528 : 39 L.Ed. 577.

It is abundantly clear that unless the Naib-Tahsildar''s Court has got authority to entertain an application for mutation or correction of papers and it decides it in any way, it could not be said that it has got the jurisdiction to entertain it. Any jurisdiction or authority of a Court to entertain or to dispose it of finally is inherent. Only one part of it, namely, just entertainment would not constitute jurisdiction nor it can confer power on the Court to decide it also.

After the issuance of notification u/s 4 of the Act, for the purposes of any grievance either for mutation or for correction of papers or for declaration of title etc. only objection could be filed u/s 9 or 9A or Section 12 of the Act and the Naib Tahsildar has got no jurisdiction to entertain the application for mutation or correction of papers. It is, accordingly, obvious that the Naib-Tahsildar has no authority to entertain or decide the mutation application nor it can be said to be a Court. The word ''Court'' u/s 195 of the Code means a competent Court with power to entertain any application or suit and to dispose it of on merits. But as only the consolidation authorities have the power or jurisdiction to entertain an application for mutation or correction of papers under Sections 9, 9A or 12, the Naib Tahsildar cannot be said to be a Court within the meaning of Section 195 of the Code and even if an application for mutation was filed before the Naib-Tahsildar it cannot be assumed that he has authority to decide it also. Further the Naib-Tahsildar cannot adjudicate the validity or genuineness of the document presented before him. I am of the opinion that the complaint was not barred by Section 195 of the Code and the order of Sessions Judge was correct.

In view of the discussions made hereinbefore, I do not find any merit in the present revision and the same is hereby dismissed. The record of the case would be sent back immediately.