Sri Krishna Misra vs State of U.P. and Another

K.N. Seth and M. Murtaza Husain, JJ.—This criminal reference has been made by the Jeamed Sessions Judge, Ballia, in Criminal Revision No. 118 of 1971 of, Ballia Sessions Division. The recommendation of the learned Sessions Judge as that the order passed by the Munsif Magistrate (East Ballia dismissing, the revisionist''s complaint u/s 193 IPC filed against Sri Kant Misra, Respondent No. 2, and discharging the said Respondent of the said offence be set aside and the learned Munsjf Magistrate be directed to proceed with revisionist''s complaint in accordance with law.

The facts of the. case, giving rise to the reference, are that in connection with consolidation of holdings operations a litigation took place between the revisionist''s father Tulsi Misra and Mahadeo Misra, father of Respondent No. 2, with respect to the title of a certain agricultural plot Ultimately a compromise was, filed before the Assistant Consolidation Officer (ACOJ whereby it was contemplated that the name of revisionist''s father be entered over the disputed plot Acting upon that compromise! the, Assistant Consolidation Officer ordered the name of revisionist''s father Tulsi Misra to be mutated over the disputed plot. Respondent No. 2 filed an appeal before the Settlement Officer Consolidation (SOC) Ballia against-the aforesaid mutation order passed by the Assistant Consolidation Officers That appeal Was filed after the expiry of the prescribed period of limitations, Respondent No. 2, therefore, filed an. application u/s 5 of the Limitation Act for condonation oft delay in filing the appeal. In and affidavit accompanying that application Respondent No. 2 pleaded that he, had learnt about the impugned compromise only two days earlier. That, affidavit of Respondent No. 2 was disbelieved by ''the learned Settlement Officer Consolidation and he dismissed'' the; application of Respondent No. 2 for condoning the delay in filing the appeal. A clear finding was given by the Settlement Officer Consolidation to the effect that the affidavit filed by Respondent No. 2 in support of the application u/s 5 of the Limitation Act was false. Thereafter the revisionist filed a complaint u/s 193 IPC against Respondent No. 2 before the Munsif Magistrate (East) Ballia for having filed the afore-said false affidavit before the Settle-mint Officer Consolidation. The revisionist filed that complaint because his father had by that time died. It was pleaded, inter alia, by Respondent No. 2 before the learned Munsif Magistrate (East) Ballia that he had on jurisdiction to entertain the complaint because the affidavit, which was the basis of that complaint, was filed before a court of law, namely, the Settlement Officer Consolidation in connection with judicial proceedings and, therefore, it was only the Settlement Officer Consolidation who could file a complaint against Respondent No. 2 and the learned Munsif Magistrate could not take cognizance of revisionist''s complaint in view of the bar imposed by Section 195(1)(b) Code of Criminal Procedure. That technical plea prevailed with the learned Munsif Magistrate and he dismissed the revisionist''s complaint. Feeling aggrieved by that order the revisionist filed Criminal Revision No. 118 of 1971 in the court of the Sessions judge, Ballia, which came up for hearing before the learned Additional Sessions judge who has made this reference. The learned Sessions Judge came to the conclusion that consolidation authorities were not courts for the purposes of Section 195(1)(b) Code of Criminal Procedure at they were tribunals for limited purpose. He, therefore, opined that the bar imposed by Section 195(1)(b) Code of Criminal Procedure did not apply to the complaint of the revisionist. Consequently he allowed the revision and made the present refereed with the recommendation referred to above.

This reference originally came tip before a learned single judge of this Court He felt that the question involved? in the present reference was likely to effect a large number of cases, and therefore, it was necessary that the said question be decided by a Division Bench. The matter has thus come up before us.

The sum and substance of the reasoning given by the learned Sessions Judge in the reference is that the Settlement Officer Consolidation, before whom Respondent No. 2 was said to have filed a false affidavit, was not a court within the meaning of Section 195(1)(b) Code of Criminal Procedure and as such revisionist''s private complaint u/s 193 IPC against Respondent No. 2 was maintainable and no complaint by the Settlement Officer Consolidation was necessary.

In order to appreciate the reasoning a look may be had at Section 195(1)(b) Code of Criminal Procedure which runs as follows:

No Court shall take cognizance-

(b) of any offence punishable under any of the following sections of the same Code (IPC), namely, Sections 193...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 to which such Court is subordinate.

Sub-section (2) of the aforesaid section lays down that:

In Clause (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 Indian Registration Act, 1877.

The word ''Court'' has not been defined anywhere by the Criminal Procedure Code. Sub-section (2) of Section 195 Code of Criminal Procedure reproduced above, however, gives a clear indication to the effect that the word ''Court'' used in that section has a wider meaning than a mere ''Court of Justice'' as defined in the Indian Penal Code as it includes a Civil, Criminal or Revenue Court. The word ''Court'' has thus been used in the section in its general sense. It embraces Courts which art neither Civil, Criminal nor Revenue.

Section 4(8) Code of Criminal Procedure lays down that all words and expressions used herein and defined in the Indian Penal Code, and not hereinbefore defined, shall be deemed to have the meanings respectively attributed to them by that Code. By virtue of this section we have to take assistance from relevant definitions contained in the Indian Penal Code for determining as to what the word ''Court'' as used in Section 195(2) Code of Criminal Procedure means.

Section 20 IPC defines the word ''Court of Justice'' as a Judge who is empowered by law to act judicially alone or a body of Judges which is empowered by law to act judicially as a body when such Judge or body of Judges is acting judicially. Section 19 IPC defines the word ''Judge'' as not only every person who is officially designated as a Judge but also every person who is empowered by law to, give in any legal proceeding, civil or criminal, a definitive judgment, or a judgment which, if not appealed against, would be definitive, or a judgment which, if confirmed by some other authority, would be definitive, or who is one of the body of persons which body of persons is empowered by law to give such a judgment.

The above noted two definitions indicate that the pronouncement of a definitive judgment is considered the essential ''sine qua non'' of a Court and unless and until a binding and authoritative judgment can be pronounced by a person or body of persons it cannot be predicated that he or they constitute a Court.

In Brajnandan Sinha Vs. Jyoti Narain, the conditions necessary for constituting a Tribunal to be a Court were considered and it was Lail down:

It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should: have, apart from having some of the trappings of a Judicial tribunal, power to live a decision or a definitive judgment which has finality and attentiveness which are the essential tests of a judicial pronouncement.

In order to determine whether or not a Settlement Officer Consolation while entertaining and hearing an appeal against the order of an Assistant Consolidation Officer is a Court in the light of the above noted definitions we have to look to the object, scheme and hierarchy of different authorities created by the U.P. Consolidation of Holdings Act and the functions assigned to them.

A study of the provisions of the Act would reveal that it is a self contained Code so far as consolidation matters are concerned. It hag created its own Tribunals for the decision, of the matters relating to consolidation of agricultural holdings. In order to decide claims and counter-claims speedily the consolidation authorities are given the power to decide all claims and objections and the Act gives the seal of finality to these decisions. In the hierarchy of the various authorities constituted u/s 42 of the Act the Assistant Consolidation Officer and the Consolidation Officer do toe spade work and are the authorities of first instance before whom objection and disputes come up for decision. The powers of Assistant Consolidation Officer are restricted to non-contentions matters and also when he can bring about conciliation between the parties. So far as disputed matters are concerned he has to refer them to the Consolidation Officer for decision. Appeals against the orders of the Consolidation Officer are to be heard in the Settlement Officer Consolidation. Revisions against the orders of the Settlement Officer Consolidation are to be disposed of by the Director of Consolidation in which category the Assistant Director, the Deputy Director and the Joint Director are also included, Under the Scheme of the Act the Assistant Consolidation Officer and the Consolidation Officer have to perform both judicial and executive function While performing, executive functions. consolidation authorities can undoubtedly be not called, to be Court, The question which, however; remains for consideration a whether or hot while performing judicial nations they are Court For that determination we have to be guided be the test already referred to above, namely, whether or not those authorities have power to give a binding decision on a definitive judgment which has finality and authoritativeness as a Judicial pronouncement.

Section 9-A of the Act deals with decision of objections by the Assistant Consolidation Officer and Consolidation Officer. Sub-section (3) of that section lays down:

The Assistant Consolidation off objective while, acting under Sub-section (1) and the Consolidation Officer, while acting under Sub-section (2), shall be deemed to be a court of competent jurisdiction, anything to the contrary contained in any other law for the time being in force notwithstanding.

Section 11 of the Act lays down that any party to the proceedings u/s 9-A aggrieved by an order of the Assistant Consolidation Officer or the Consolidation Officer may within 21 days of the date of the order file an appeal before the Settlement Officer Consolidation whose decision shall be final and not be questioned in any court of law. Sub-section (2) of that section lays down that the Settlement Officer Consolidation hearing, an appeal under Sub-section (1) shall be deemed to be a court of competent jurisdiction, anything to the contrary contained in any law for the the being in force notwithstanding. Section 40 of the Act lays down that proceedings before a Director of Consolidation, Deputy Director of Consolidation, Settlement Officer Consolidation, Consolidation Officer and Assistant Consolidation Officer shall be deemed to be judicial proceeding within the meaning of Section 193 and 228 and for the purposes of Section 196 of the IPC Section 49 of the Act lays down that notwithstanding anything contained in any other law or the time being in force, the decisions of the consolidation authorities shall not challenged in any civil or revenue court on matters with respect to which proceedings could or ought to have been taken before the appropriate authorities under the Act. It is clear from the above noted provisions of the Act that while performing their judicial functions u/s 9-A and Section 11 of the Act the Assistant Consolidation Officer, the Consolidation Officer and the Settlement Officer Consolidation have been given status of courts of competent jurisdiction with powers to give definitive judgments: with finality and authoritative-ness which could not be challenged in any other court of competent jurisdiction and the proceedings held by those authorities are judicial proceedings. That being so the Consolidation Officer, the Assistant Consolidation Officer and the Settlement Officer Consolidation while performing the above noted judicial functions are courts for the purposed of Section 195(1)(b) Code of Criminal Procedure.

In his order the learned Sessions Judge has referred to certain authorities wherein it has been laid down that the consolidation authorities were not civil or revenue Courts. Most of those authorities are of pre-1963 period when the above noted Sub-section (3) of Section 9-A and Sub-section (2) of Section 11 did not form part of the U.P. Consolidation of Holdings Act. Those two sub-sections were added through U.P. Act No. 8 of 1963 which came into force on 8th March 1963. It is since after the addition of those sub-sections that the Assistant Consolidation Officer, Consolidation Officer and the Settlement Officer Consolidation were given status of Court pf law anything contrary contained in any other law for the time being in force notwithstanding. It is, therefore, not necessary for us to consider those authorities.

The post-1963 authority referred to by the learned Sessions Judge in his referring order is the Pull Bench decision of this Court in Bijai Narain Sinha v. State of U.P. 1969 AWR 482. The question requiring consideration of the Full Bench was whether or not different authorities constituted under the Consolidation of Holdings Act were civil Courts so as to permit the oath, commissioners appointed by the District Judge u/s 139 Code of Criminal Procedure competent to verify affidavits required to be filed before those authorities. The Full Bench replied that question in the negative on the ground that the authorities appointed under the Act were not courts of civil jurisdiction and they performed judicial functions only for limited purpose and, there-fore, the that commissioners appointed u/s 139 Code of Criminal Procedure could not verify affidavits which were to be filed before those authorities. The decision of the Full Bench in that case is not helpful because considering all the functions of consolidation authorities, judicial as well as executive, it wag held in that case that the various authorities constituted under the Act could neither be held to be courts of Civil jurisdiction nor those governed by the Code of Criminal Procedure in the matter of procedure. What we have to consider in the present case is whether or not while performing judicial functions under Sections 9-A and 11 of the Act the authorities concerned are courts for the purposes of Section 195(1)(b) Code of Criminal Procedure. B.B. Misra, J., who pronounced the leading judgment in the above noted Full Bench case, undoubtedly observed that even while performing judicial function u/s 9 of the Act the Consolidation Officer was not a court because the use of the words ''deemed to be'' went to show that the Legislature did not intend to give full status of courts, to the authorities constituted under the Act. The other member of the Bench, namely, T.P. Mukerji, J. disagreed with that observation and relying upon newly added Sub-section (3) of Section 9-A he held that while performing judicial functions u/s 9-A of the Act the consolidation authorities had full status of a court; of law. The, third learned Judge, who constituted that, Bench, namely, B.D. Gupta, J, expressed, no opinion on the point because in his opinion that was not necessary far, the disposal of the point which was Deferred to the Full Bench, namely, whether or pot the path commissioners appointed u/s 139 Code of Criminal Procedure could verify affidavits filed before consolidation authorities while performing their functions under the Act.

This matter was again considered by a Division Bench of this Court in Smt. Jamila Khatoon v. Deputy Director of Consolidation 1971 AWR 438. It was held that though the phrase ''deemed, to be'' occurring in Section 9-A(3) and Section 11(2) of the Act may mean that the said authorities are not Courts in the real sense of the word, but it would point out to an intent on the part of the Legislature that they were constituted to be courts of competent jurisdiction. We agree with this observation of the learned Judges and hold that since the amendment of Sections 9-A and 11 of the main Act through U.P. Act No. 8 of 1963 and addition of Sub-section (3) to Section 9-A and Sub-section (2) to Section 11 the Assistant Consolidation Officer and the Consolidation Officer while disposing of objections u/s 9-A of the Act and the Settlement Officer Consolidation while deciding an appeal u/s 11(1) of the Act are courts of competent jurisdiction. They may or may not be civil or revenue courts for all purposes but they are certainly courts in the wider sense of the term as used in Section 195(1)(b) Code of Criminal Procedure.

The revisionist''s complaint against Respondent No. 1 was based upon filing a false affidavit by the said Respondent before the Settlement Officer Consolidation concerned while sitting as a court of appeal u/s 11(1) of the U.P. Consolidation of Holdings Act. In that capacity, the Settlement Officer Consolidation was a court and the proceedings wherein affidavit or filed before him were judicial proceedings. The provisions of Section 195(1)(b) Code of Criminal Procedure were, therefore, attracted. On that account the learned Munsif Magistrate (East) Ballia could not take cognizance of the revisionist''s complaint unless a complaint with respect to the offence to which that complaint related was filed by the Settlement Officer Consolidation concerned. The learned Munsif Magistrate was, therefore, perfectly justified in dismissing the revisionist''s complaint on the ground that he was not competent to entertain it. We do not agree with the finding of the learned Sessions Judge to the effect that the Settlement Officer Consolidation concerned was not a court for the purposes of Section 195(1)(b) Code of Criminal Procedure and revisionist''s private complaint; could be entertained by the learned Munsif Magistrate. That being so we are of the opinion that the order of dismissal of revisionist''s complaint by the learned Munsif-Magistrate (East), Ballia, was a perfectly valid and proper order. The reasons given by the learned Session''s Judge in his referring order regarding the invalidity of that order are not acceptable to us.

Consequently, we reject the reference made by the learned Sessions Judge and direct that the revision filed before the learned Sessions Judge, Ballia, shall stand dismissed.