DILAWAR KHAN Vs. STATE

JUDGEMENT

(1.) A reference was made by the Settlement Commissioner, recommending that an order dated 20th Magh, 2011 passed by Mufti Rashid-ud-Din, the Settlement Tehsildar (Assistant Collector, First Class), Sopore, convicting Dilawar Khan, applicant, under Section 228, R. P. C. , read with Section 480, Cr. P. C. , for intentionally causing interruption to the Tehsildar and sentencing him to a fine of Rs. 100/be set aside, as it was not in accordance with law and the Tehsildar had not prepared the record as required by Section 481, Cr. P. C. Under this section the Tehsildar wag bound to record the nature and stage of the judicial proceeding in which he was sitting at the time when interruption or insult was caused to him and the nature of the interruption or insult. He was also bound to record the statement of the applicant.

(2.) I have heard the learned Counsel for the applicant and the Advocate-General. It appears that in the course of the disposal of the application of one Mst. Fadzanj for revision of some entry in the revenue record on the ground that her uncle, Jabar Khan, had manipulated to get her name removed therefrom, the Settlement Tehsildar passed an order to the following effect: During the course of the hearing of the case of Mst. Farzani, Dilawar Khan applicant (son of Jabar Khan) interfered and caused interruption without any right and this act of his comes within the mischief of Section 480, R. P. C. , and he is sentenced to pay a fine of Rs 100/-, or in default he would undergo simple imprisonment for one week. The learned Advocate General concedes that this order of the Settlement Tehsildar was Illegal and could not stand. The order did not show at what stage of the proceedings interruption was caused to the Tehsildar. It also did not show in what capacity he was disposing of the proceeding and if the proceeding before him was judicial. The Tehsildar had also failed to record the statement of the applicant. Apart from it, the order itself is couched in absolutely wrong language. The Tehsildar does not mention that he convicts the applicant under Section 228, R. P. C. , and he makes reference to Section 480, R. P. C. , while in fact he should have made reference to Section 480, Cr. P. C. The order, therefore, was one which should have been set aside as recommended by the Settlement Commissioner whose recommendation besides his own examination was based on the recommendations of the successor of the Settlement Tehsildar and the Settlement officer, Baramulla.

(3.) A difficulty, however, was felt whether in a case like this, this Court could exercise jurisdiction under Sections 435 and 439, Cr. P. C. , as under these sections the power of this Court is confined to rectifying the errors of any inferior criminal Court and it is not free from doubt if a Revenue Court or a Revenue officer exercising jurisdiction under Section 480, Cr. P. C. , is a criminal Court. In this connection reference may be made to Note 7, point 19a, under Section 435 of Chitaley's Code of Criminal Procedure, 5th Edition It is not necessary, however, to go into this point, as counsel for the applicant has also filed today a writ application under Article 32 (2a) of the Constitution of India read with Section 103 of the State Constitution, Under Section 103 of the State Constitution this Court has power to issue to any person or authority, including in appropriate cases any Government within the State, directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for any purpose other than those mentioned in Clause (2a) of Article 32 of the Constitution of India, As the order passed by the Settlement Tehsildar is manifestly illegal and contravenes the provisions of Section 481, Cr. P. C. , it is a fit case in which a writ under Section 103 of the State Constitution should issue. The Writ application is, therefore, accepted, the order of the Settlement Tehsildar is set aside and it is directed that no fine in pursuance of the order of the Settlement Tehsildar shall be realised from the applicant. In these circumstances no orders are necessary on the reference made by the Settlement Commissioner which is consigned to the records.