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PUNJAB & HARYANA HIGH COURT
J.S.Sekhon, J.
Gurnam Singh, Tehsildar Ist Grade, Amritsar
Versus
Kartar Singh
Criminal Misc. No. 8663 of 1987,
Decided On : JUNE 1, 1989
CRIMINAL PROCEDURE CODE - SECTION 197 - SANCTION FOR PROSECUTION - TEHSILDAR - ACTING IN OFFICIAL CAPACITY - NOT A JUDGE - NO SANCTION REQUIRED.
Fact of the Case:
A Tehsildar, while sanctioning mutation under Section 34 of the Punjab Land Revenue Act, was accused of committing offences under Sections 167/418/420/465/468 read with Section 34 of the Indian Penal Code. The complainant alleged that the mutation was sanctioned without his consent and that he never appeared before the Tehsildar or the Patwari for the sanctioning of the mutation.
Finding of the Court:
The court held that the Tehsildar was acting in his official capacity while sanctioning the mutation and that the alleged misconduct was related to his official acts. The court further held that the Tehsildar was not acting as a Judge within the meaning of Section 19 of the Indian Penal Code and that he did not give any definite judgment on the rights of the parties. Therefore, no sanction of the State Government was required before taking cognizance of the offences against him by the trial Court.
Issues: 1. Whether the Tehsildar was acting in his official capacity while sanctioning the mutation? 2. Whether the Tehsildar was acting as a Judge within the meaning of Section 19 of the Indian Penal Code?
Ratio Decidendi: 1. The court held that the Tehsildar was acting in his official capacity while sanctioning the mutation because the alleged misconduct was directly concerned with his official duties and could be claimed to have been done by virtue of his office. 2. The court held that the Tehsildar was not acting as a Judge within the meaning of Section 19 of the Indian Penal Code because he was not empowered to administer oath under the law while recording statements of the witnesses in mutation proceedings and that he did not give any definite judgment on the rights of the parties.
Final Decision: The court dismissed the petition and directed the trial Court to dispose of the case expeditiously.
J.S.Sekhon, J.
1. This petition is directed under the provisions of Section 482 of the Code of Criminal Procedure, 1973, by Shri Gurnam Singh, Tehsildar, for quashing the complaint dated 3rd October, 1987, Annexure P.1 and the order dated 12th November, 1987 passed by Sub Divisional Judicial Magistrate, Annexure P-2, summoning the petitioner and two others to face trial for the offences under Sections 167/418/420/465/468 read with Section 34 of the Indian Penal Code.
2. Briefly, the factual matrix of the case is that Gurnam Singh, petitioner, while posted as Tehsildar, Khanna, sanctioned mutation No. 2321 on 3rd July, 1986, with regard to the exchange of land belonging to Kartar Singh complainant and his brothers namely, Babu Singh and Nahar Singh with Mewa Singh one of the accused, in collusion with Shri Pritpal Singh, Halqa Patwari. It is alleged by the complainant that he or his brothers never agreed to such exchange of land and that they never appeared before the Tehsildar or the Patwari for the sanctioning of this mutation. Kartar Singh filed the above referred complainant against Gurnam Singh Tehsildar, Pritpal Singh Patwari and Mewa Singh on 3rd October, 1987 after he failed to get any redress from the concerned authorities.
3. The trial Court after recording the preliminary evidence of Kartar Singh (P.W. 1), Baldev Singh (PW.2), Bant Singh (P.W.3), Jugraj Singh (P.W.4), Mewa Singh (P.W.5) and Mani Singh (P.W.6) found prima facie case against the accused persons for the aforesaid offences and summoned them to face trial vide impugned order, Annexure P.2.
4. The main controversy in the present petition is whether the Tehsildar while sanctioning mutation under Section 34 of the Punjab Land Revenue Act, is a Judge or whether the protection of the provisions of Section 197 of the Criminal Procedure Code, 1973, are attracted in this case for holding that the trial Court could not have taken cognizance of the offences as the State Government was the appointing or the dismissing. Authority or whether the alleged offences were committed while acting or purporting to act in the discharge of the official duties.
5. I have heard the learned Counsel for the parties besides perusing the trial Court file. Admittedly, the offence under Sections 167/418/420/465/468 read with Section 34 of the Indian Penal Code were allegedly committed by Gurnam Singh petitioner while acting or purporting to act in the discharge of his statutory duty imposed upon him under Sections 34 and 36 of the Punjab Land Revenue Act. Simply because the mutation was sanctioned without admission of Kartar Singh complainant or his brothers regarding the oral exchange of land with Mewa Singh accused, it cannot be said that the alleged misconduct of this Revenue Officer is not related to the above referred official acts. The judgment of the Supreme Court in Amrik Singh v. State of Pepsu, AIR 1955 SC 309 can safely be referred in support of the proposition that if the act complained of is directly concerned with the official duties so that, if questioned, it could be claimed to have been done by virtue of the office, then sanction would be necessary under the provisions of Section 197(1) of the Criminal Procedure Code, irrespective of the fact whether it was, in fact, a proper discharge of his duties, because that would really be a matter of defence of the merits, which would have to be investigated at the trial and could not arise at the stage of the grant of sanction, which must precede the institution of the prosecution.
The question then arises whether a Tehsildar can be removed from his post save by or with the sanction of the Government. In this regard, Rule 7 of the Punjab Tehsildars (Class II) Services Rules, 1984, framed by the Punjab Government under Article 309 of the Constitution, clearly provides that the Financial Commissioner shall be the appointing authority. If that is no, then the authority has also to be treated as the dismissing authority by
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