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2008 DIGILAW 264 (JK)

Mohd. Rafiq v. Mohan Lal

2008-06-30

J.P.SINGH

body2008
1. Petitioners have filed this petition seeking quashing of September 02, 2004 order of Judicial Magistrate Ist Class (Munsiff), Sunder Bani convicting and sentencing petitioners Mohd Rafiq and Ajay Pal Singh to a fine of Rs. 500 under Section 120-B RPC and Rs. 5000 under Section 167 RPC each, and in default of payment of fine, to simple imprisonment for one month under Section 120-B RPC, and six months under Section 167 RPC. 2. Grievances projected by the petitioners on facts is that the learned Magistrate had neither given any opportunity to them to project their defence nor to prove that the land which had been stated to be within the Municipal area, was in fact located outside the notified area. Projecting violation of law, they say that learned Magistrate had acted with bias by becoming judge in his own cause. 3. I have considered petitioners counsels submissions and perused the records of the learned Magistrate. 4. Facts necessary for the disposal of this petition may, in brief, be stated thus. 5. Judicial Magistrate Ist Class (Munisff), Sunder Bani is vested with the powers of "Sub-Registrar" too under the Jammu and Kashmir Registration Act, Samvat, 1977. A sale deed executed by Mohan Lal Vendor in favour of Om Parkash Vendee came to be registered by him as Sub-Registrar, Sunder Bani. He later received information through an official communication that sale deed executed by the Vendor pertaining to Khasra No. 2869 of village Bhajwal Phulwari, Sunder Bani pertained to the land which was within the Municipal limits of Sunder Bani and its market value was approximately Rs. 10,000 per marla whereas the property had been shown in the sale deed to be located outside the Municipal limits of Sunder Bani and its value had been reflected as Rs. 1272.72 per marla. All this had been indicated to have been shown by the parties to the sale deed, in conspiracy with the Revenue officials who had issued Fard Inthkhab recording incorrect information. 6. Learned Magistrate conducted an inquiry in this behalf but, in his capacity, as Sub-Registrar, Sunder Bani, though he had signed the inquiry papers and report as Judicial Magistrate Ist Class, Sunder Bani. His inquiry revealed that the Revenue officials had committed offences punishable under Sections 120-B, 167 and 417 RPC. He in his capacity as Sub-Registrar, Sunder Bani issued an order for lodging a complaint against the petitioners. His inquiry revealed that the Revenue officials had committed offences punishable under Sections 120-B, 167 and 417 RPC. He in his capacity as Sub-Registrar, Sunder Bani issued an order for lodging a complaint against the petitioners. A complaint was, accordingly, drafted by him. This complaint too is shown to have been drafted by him as a Magistrate, although it should have been shown to have been drawn by him in his capacity as Sub-Registrar. 7. The same learned Presiding Officer, thereafter entertained the complaint himself and issued process thereon directing his Criminal clerk to issue summons to the accused for their appearance before him on September 02, 2004. 8. A composite order which has been impugned in this petition was passed by the learned Magistrate on September 02, 2004 itself. In terms of this order, learned Magistrate is shown to have heard the accused, framed charges against them and recorded their having pleaded guilty to the charges. It is further recorded in the order that he had informed the accused that they were entitled to have the case tried by another court. He, accordingly, concluded his order by recording conviction and sentence against the petitioners on the same day. 9. While taking cognizance and issuing process against the accused named in the complaint drafted by the learned Magistrate in his capacity as Sub-Registrar, Sunder Bani, he appears to have assumed jurisdiction under Section 190(1)(c) of the Code of Criminal Procedure and in that view of the matter, before proceeding to convict and sentence the petitioners, had given option to the petitioner under section 191 of the Code of Criminal Procedure. 10. In order to examine as to whether or not the learned Magistrate was right in assuming jurisdiction and proceeding against the petitioners, regard needs to be had to the provisions of Sections 190 and 191 of the Code of Criminal Procedure. These two sections reads thus: Section 190. 10. In order to examine as to whether or not the learned Magistrate was right in assuming jurisdiction and proceeding against the petitioners, regard needs to be had to the provisions of Sections 190 and 191 of the Code of Criminal Procedure. These two sections reads thus: Section 190. "Cognizance of offence by Magistrates (1) Except as hereinafter provided, [any Chief Judicial magistrate and any other judicial Magistrate] specially empowered in this behalf, may take cognizance of any offence- (a) Upon receiving a complaint of facts which constitute such offence; (b) Upon a report in writing of such facts made by any police officer; (c) Upon information received from any person other than a police officer, or upon his own knowledge or suspicion, that such offence has been committed (2) The [High Court may empower any Judicial Magistrate] to take cognizance under sub-section (1), clause (a) or clause (b), of offences for which he may try to commit for trial. (3) The [High Court may empower any Judicial Magistrate] of the first or second class to take cognizance under sub-section (1), clause ( c), of offence for which he may try to commit for trial. Section 191. "Transfer or Commitment on application of accused When a magistrate takes cognizance of an offence under sub-section (1), clause (c), of the preceding section, the accused shall, before any evidence is taken, be informed that he is entitled to have the case tried by another Court, and if the accused, or any of the accused if there be more than one, objects to being tried by such Magistrate, the case shall, instead of being tried by such Magistrate, be committed to the Court of Session or transferred to another Magistrate." 11. Perusal of above quoted section 190 (1) (C) indicates that a Magistrate may act under this sub-section of Section 190 (1) only in two contingencies, viz., when he receives information regarding the commission of any offence from any person other than a police officer or when he, upon his own knowledge or suspicion, comes to the conclusion that an offence had been committed. This section, therefore, would have no application when cognizance had to be taken on the basis of a complaint made to him disclosing the commission of any offence because cognizance on a complaint is contemplated by Section 190 (1) (a) of the Code. This section, therefore, would have no application when cognizance had to be taken on the basis of a complaint made to him disclosing the commission of any offence because cognizance on a complaint is contemplated by Section 190 (1) (a) of the Code. In other words, Magistrate taking cognizance under Section 190 (1) (C) of the Code has to be satisfied either upon his own knowledge or upon his own suspicion that an offence has been committed before he may take cognizance under Section 190 (1) (c) of the Code of Criminal Procedure. 12. In the present case, the learned Magistrate, while discharging his duties as a Magistrate, had neither on his own knowledge nor on the basis of suspicion come to the conclusion that an offence had been committed; on the other hand, it was only the Sub-Registrar, Sunder Bani, who had come to know that an offence had been committed. Knowledge or suspicion of the Sub-Registrar cannot be treated to be the knowledge or suspicion of a Magistrate so empowering him to exercise jurisdiction in taking cognizance of an offence under Section 190 (1)( c) of the Code. 13. Cognizance in this case, on the other hand, had been taken by the learned Magistrate on the basis of a complaint lodged by Sub-Registrar, Sunder Bani, and in that view of the matter, this cognizance by the Magistrate would to be a cognizance contemplated by section 190 1(a) of the Code. 14. Such being the case, learned Magistrate had thus erred in exercising jurisdiction in taking cognizance of the offence on the basis of the complaint which he had himself drawn and signed. 15. Learned Magistrate, as the facts eloquently demonstrate, had become the judge of his own cause. He had thus no jurisdictional competence to judge his own complaint as to whether or not any case for issuance of process had been made out against the accused on the basis of his own complaint. 16. The complaint, as the records indicate, was even otherwise, incompetent, and no process, in law, could have been issued on the basis thereof because it was not accompanied by the list of witnesses. In terms of Section 204 (1-a) of the Code of Criminal Procedure, no summons or warrants can be issued against an accused under Section 204-A(1) until a list of prosecution witnesses had been filed therewith. In terms of Section 204 (1-a) of the Code of Criminal Procedure, no summons or warrants can be issued against an accused under Section 204-A(1) until a list of prosecution witnesses had been filed therewith. The process issued against the petitioners by the learned Magistrate was thus even otherwise illegal and unwarranted. 17. I further find from the records of the case that the learned Magistrate had conducted all the proceedings impetuously thereby acting impiously impinging on the sanctity of judicial proceedings. It is well settled law, reiterated by Honble Supreme Court of India in Manak lal and others v. Dr. Prem Chand Singhvi and others, reported as AIR 1957 SC 425, that every member of a Tribunal, that is called upon to try issues, in judicial or quasi judicial proceedings must be able to act judicially; and it is the essence of judicial decisions and judicial administration that judges should be able to act impartially, objectively and without any bias. In such cases, the test is not whether infact a bias has affected the judgment; the test always is and must be, whether a litigant could reasonably apprehend that a bias attributable to a member of the Tribunal might have operated against him in the final decision of the Tribunal. It is in this sense that it is often said that justice must not only be done but must also appear to be done. 18. That apart, having proceeded to, inquire into the allegations appearing against the accused, recorded evidence of witnesses summoned during the course of inquiry, examined documents, reached at the conclusion that an offence under Sections 120-B/167/417 RPC had been found to have been made out against the accused, and finally decided to lodge a complaint against the accused, the learned Magistrate was not required to sit as a judge in the case to decide the issue. Such a course adopted by the Learned Magistrate, would not, in my opinion, be saved by the provisions of Section 191 of the Code of Criminal Procedure, which as earlier said, had no application to the facts of the case and had been attempted to be followed merely as a formality. Learned Magistrates assuming jurisdiction, issuing process, convicting and punishing the petitioners, is thus violative of the principles of natural justice flowing from the Maxim Nemo Debet Esse Judex in Causa propria Sua. Learned Magistrates assuming jurisdiction, issuing process, convicting and punishing the petitioners, is thus violative of the principles of natural justice flowing from the Maxim Nemo Debet Esse Judex in Causa propria Sua. Proceedings held by the learned Magistrate are accordingly held to be void abinitio. 19. This petition, therefore, succeeds and is, accordingly, allowed quashing the proceedings initiated and concluded by learned Judicial Magistrate Ist Class (Munsiff), Sunder Bani. Petitioners conviction and sentence recorded by the learned Judicial Magistrate Ist Class (Munsiff), Sunder Bani is, accordingly, quashed and set aside. Fine paid shall be refunded to them.