LAWS(P&H)-1971-1-43

STATE OF PUNJAB Vs. SHAM KAUR

Decided On January 14, 1971
STATE OF PUNJAB Appellant
V/S
SHAM KAUR Respondents

JUDGEMENT

(1.) The sole point of law arising in this petition is whether an officer acting and deciding a matter in the course of the mutation proceedings under the Punjab Land Revenue Act is a Court within the meaning of Section 195(1) (c) and (2) of the Code of Criminal Procedure.

(2.) The facts which deserve notice for the limited purpose of this order are that on a complaint filed by Karam Singh against Smt. Sham Kaur and seven others under Sections 465, 467 and 474, Indian Penal Code, the accused persons were committed to the Court of Session by the order of the Judicial Magistrate, 1st Class, Jagraon, on the 16th of October, 1967. The allegations in the said complaint were that after the death of one Anokh Singh of village Chakar on the 4th of May, 1966, Smt. Sham Kaur and Smt. Dhan Kaur accused persons had conspired with others to forge a will on behalf of Anokh Singh deceased declaring them as his heirs along with one Smt. Surjit Kaur who otherwise was the daughter and the sole heir of the deceased. On the basis of the said forged will a mutation was entered 23 days after the death of Anokh Singh and came up before the Tahsildar Jagraon for sanction in June, 1966. Smt. Sham Kaur accused appeared before the Tahsildar and produced the will and prayed that effect should be given to it which, however, was objected to by Karam Singh, complainant, and his wife Smt. Surjit Kaur as they alleged it to be a forged document. On another date, namely, the 23rd of July, 1966, Smt. Sham Kaur again along with her co-accused presented the said will and sought the sanction of the mutation in their favour in accordance therewith. The Tahsildar, however, finding the matter to be a disputed one referred the mutation to the Sub-Divisional Magistrate, Jagraon (Collector) for decision. It appears that in the Court of the Sub-Divisional Officer, Jagraon, the will above-mentioned was not produced and an order was passed sanctioning the mutation of inheritance of Anokh Singh deceased in favour of Smt. Surjit Kaur and Smt. Dhan Kaur in equal shares. It was thereafter that the present complaint was filed before the learned Judicial Magistrate and during the commitment proceedings an objection was taken on behalf of eight accused persons that the learned Magistrate could not take cognizance of the complaint as the will was produced before the Tahsildar who was functioning as a Court and who alone was, therefore, competent to make a complaint against the accused-persons as required by Section 195(l)(c). This objection was rejected by the Committing Magistrate and he passed the order above-noticed. On the date of the trial before the Court of the Additional Sessions Judge, the present petition was moved on behalf of the Petitioners repeating their earlier objection that as the provisions of Section 195(l)(c) of the Code of Criminal Procedure, had not been complied with the complaint was incompetent, the cognizance taken by the Magistrate was bad in law without jurisdiction and the commitment of the Petitioners should, therefore, be quashed. The learned Additional Sessions Judge by his referring order dated the 6th of May, 1968, has recommended the quashing of the commitment proceedings whilst upholding the objection taken on behalf of the Petitioners.

(3.) The point arising for adjudication has been elaborately canvassed before me. Mr. S.S. Dhaliwal in support of the petition and the reference has placed primary reliance on Mohar Singh V. The State,1968 1 CurLJ 103 where on almost indentical facts Bedi J. has held that the Tahsildar or Roving Revenue Assistant acts as a Court when he is deciding the mutation proceedings and as the complaint had not been filed by the said Court as required by Section 195(1)(c), the Magistrate could not take cognizance of the same and the proceedings were consequently quashed. These observations undoubtedly tend direct support to the contention raised by Mr. Dhaliwal. The learned Counsel has also placed reliance on three other authorities which were referred to in passing by the learned Judge in Mohar Singh's case (1) in Har Prasad V. Hans Ram and Ors., 1966 AIR(All) 124(2) a Single Judge of the said Court has held that a Tahsildar dealing with a mutation proceedings under the U.P. Land Revenue Act is a Court within the meaning of Section 195(1)(c). This decision, however, seems to have turned on the particular provisions of the said statute and specially on the defining clause in Section 4(8) of the United Provinces Land Revenue Act 1901 which reads as under: