Research › Browse › Judgment

Patna High Court · body

1985 DIGILAW 258 (PAT)

Md. Illias v. Md. Zulaffakar

1985-09-10

K.B.SINHA

body1985
JUDGMENT : Krishna Ballabh Sinha, J. - This is an application under section 482 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') to quash the ORDER :, by which the learned Magistrate took congnisance of the offence punishable under section 419, 467, 468 read with section 114 of the Indian Penal Code. 2. The prosecution, has been initiated on the basis of a complaint petition filed by the opposite party in the court of the Chief Judicial Magistrate, Banka on 1.6.1983. The said petition was transferred to the court of a first class Magistrate under the provisions of section 192(2) of the Code. In the transferee court an enquiry under section 202 of the Code was held and, thereafter, summons were issued against the petitioners to face trial. 3. The fact necessary for disposal of this case are that an application was filed on 2.3.1981 purported to be on behalf of Mr. Md. Shakhawat, father of the opposite party, before the Consolidation Officer, Barahat, for sanction to transfer some lands. The Consolidation Officer gave the requisite permission as provided under section 5 of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956, (Bihar Act XXII of 19 56) (hereinafter referred to as the Ace) to sell 1.66 Acres of land spread over several plots. According to the complaint petition, petitioner no.4, Abdul Lais, falsely impersonated Md. Shakhawat, father of the opposite party and two affidavits were filed by petitioners no. 2, Md. Soaib and no. 3, Md. Zobar, who were identified by petitioner no. 1, Md. Illias. A case was registered on the basis of the said application, which was numbered as Case no. 878/80-81. The Consolidation Officer, in exercise of the power under section 6 of the Act, accorded sanction. Allegation against the petitioners is that in connivance with each other they filed a false petition in the name of the opposite party and illegally obtained permission and thereby made themselves liable for prosecution for committing the offences, mentioned above. 4. The validity of the ORDER :taking cognizance has been challenged on the ground that a complaint petition at the instance of a private party was not maintainable. 4. The validity of the ORDER :taking cognizance has been challenged on the ground that a complaint petition at the instance of a private party was not maintainable. In support of this contention, learned counsel for the petitioners has referred to section 195(1)(b)(ii) of the Code, which is thus:- "195(1)(b)(ii) No Court shall take cognizance of any offence described in section 463 or punishable under section 471, Sec. 475 or Sec. 476, of the said Code, when such offence is alleged to have been committed in respect of document produced or given in evidence in a proceeding in any court ..... except on the complaint in writing of that court, or of some other court to which that court is subordinate." It is submitted on behalf of the petitioners that the Consolidation Officer, while dealing with the petition filed for sanction to sell the land, functions as a court. The petitioners have been made accused on the allegation of filing forged and fabricated documents in the said court and as such the ORDER :taking cognizance was void in absence of a complaint by the Court concerned. 5. On behalf of the opposite party, it has been argued that the Consolidation Officer does not determine the right of the parties while giving sanction to sell particular piece of land, by the owner and hence it is an Executive. 6. The question, which falls for consideration, is whether the Consolidation Officer, while exercising the power conferred under section 6 of the Act, is a court within the meaning of section 195 of the Code. The word Court is not defined in the Code. According to section 3 of the Indian Evidence Act, the term 'Court' includes all Judges, Magistrates and all persons, except arbitrator, legally authorized to take evidence. This expression has been subject matter of consideration, quite frequently, in relation to different acts. So, it has to be seen what are the essential characteristic of a Court as distinguished from other tribunals discharging quasi judicial functions. 7. This expression has been subject matter of consideration, quite frequently, in relation to different acts. So, it has to be seen what are the essential characteristic of a Court as distinguished from other tribunals discharging quasi judicial functions. 7. In the case of Brajoandao Sinha versus Jyoti Narain (A. I. R. 1956 S. C. 66), it has been held that the pronouncement of definitive JUDGMENT : is considered the essential sine quo non of a Court and unless and until a binding and authoritative JUDGMENT : can be pronounced by a person or a body of persons it cannot be predicated that he or they constitute a court. It has also been observed 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 give a decision or a definitive JUDGMENT :, which bas finality and authoritativeness which are the essential tests of a judicial pronouncement. 8. I would also like to refer to the case of Vindar Kumar Satyawadi versus the State of Punjab (A. I. R. 1956 Supreme Court 153) in which it has been observed that broadly speaking 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 :. The decision in a judicial manner requires the parties to be heard as a matter of right in support of their claim, who may adduce evidence in proof of the same. It also casts an obligation on the part of the authority to decide the matter on a consideration of evidence adduced on behalf of the parties in accordance with law. It has further been observed that there must, be lis in which persons with opposing claims are entitled to have their rights adjudicated in a judicial manner. 9. Section 37A of the Act says that not~ withstanding anything to the contrary contained in any other law for the time being in force, the Director of Consolidation, the Deputy. Director of Consolidation, the Assistant Director of Consolidation, the Consolidation officer and the Assistant Consolidation Officer shall be deemed to be courts of competent jurisdiction while hearing objections or appeals or deciding disputes under this Act. Director of Consolidation, the Assistant Director of Consolidation, the Consolidation officer and the Assistant Consolidation Officer shall be deemed to be courts of competent jurisdiction while hearing objections or appeals or deciding disputes under this Act. According to section 37B of the Act, the Consolidation Authorities, including the Consolidation Officers, are vested with powers; rights and privileges, while hearing any matter in dispute, of a civil court for the following purposes :- (a) the enforcing of the attendance of witnesses and examining them on oath, affirmation or otherwise and issuing a commission to examine witnesses;" (b) compelling any person for the production of any document; (c) punishing the persons guilty of contempt. 10. Section 6 of the Act is complete in itself. It provides the procedure for disposal of an application filed under section 5 of the Act. After receipt of an application for sanction to transfer land, according to sub-section (2) of section 6 of the Act, the Consolidation Officer has to fix a date for hearing and notices have to be issued to the parties specifying the date so fixed. On the date fixed for hearing or on any subsequent date to which it is adjourned, the Consolidation Officer has to hear the parties and after holding such inquiry, as may be necessary, he may pass such ORDER :as he thinks fit. An appeal against the ORDER :of the Consolidation Officer is provided under subsection (4) of that section. 11. Applying the principles enunciated by the Supreme Court, it may be noticed that according to the procedure prescribed under section 6 of the Act, the Consolidation Officer is empowered to make inquiry to decide a dispute, which may arise on a petition filed for granting sanction to transfer land. It is not mentioned in the section as to how the inquiry has to be conducted by the Consolidation Officer. But section 37 B confers all the power of a civil court on the Assistant Consolidation Officer and on those who are above him in the hierarchy for enforcement of attendance of witnesses and for their examination on oath and compelling any person to produce any document as also to punish the person guilty for contempt. It, therefore, follows that the Consolidation Officer while acting under the provisions of sections 5 and 6 of the Act, functions as a Court as contemplated under section 195(1) (b) of the Code. It, therefore, follows that the Consolidation Officer while acting under the provisions of sections 5 and 6 of the Act, functions as a Court as contemplated under section 195(1) (b) of the Code. 12. In view of the foregoing discussion, I find that the ORDER :taking cognizance con not be maintained, as no complaint was filed by the concerned Consolidation Officer. 13. In the result, the petition is allowed and the ORDER :taking cognizance is hereby quashed.