P L D 1957 (W (PLP)

RAHMAN, C. J.‑

This criminal revision raises the question whether a Revenue Officer disposing of mutation proceedings constitutes a Court within the meaning of the word "Court occurring in clause (c) of subsection (1) of section 195, Criminal P. C. The point has arisen in the following circumstances. The Collector, Shahpur District, was hearing an appeal from an order passed in a mutation by a subordinate Revenue Officer. On the 14th December 1954, Fateh Khan, the peti tioner in this case, is alleged to have produced an affidavit before the Collector purporting to have been sworn by one Bahadur Khan. Najib Ullah, the other party to the mutation appeal, asserted that this was a forged affidavit and that the thumb mark appearing on it had been given in fact by one Sarwar Khan who had been identified before the Oath Commis sioner as Bahadur Khan by Khan Muhammad. Najib Ullah lodged a complaint against Fateh Khan, Sarwar Khan and Khan Muhammad founded on the allegation that the affidavit purporting to be of Bahadur Khan was forged and that Fateh Khan had used it knowing it to be such in the mutation appeal. On behalf of the accused persons an objection was taken in the trial Court that in the absence of a complaint in writing from the Collector, who was described as a Court, the criminal case could not be proceeded with. This objection found favour with Mr. Muhammad Shaukat, Magistrate 1st Class, Sargodha, who discharged the accused. The complainant Najib Ullah went tip in revision to the learned Sessions Judge, Shahpur at Sargodha. The learned Sessions judge held that a Revenue Officer hearing a mutation appeal was not a Court and, there fore, section 195 (1) (c), Criminal P. C., did not cover the case. It .was, consequently, ordered that further inquiry be made in the complaint which had been dismissed without recording any evidence. This order has been challenged by the present revision petition on behalf of Fateh Khan. The charge preferred against the petitioner was that he had fraudulently and dishonestly used as genuine a document which he knew or had reason to believe to be a forged one within the meaning of section 471, Pakistan Penal Code. This is one of the sections referred to in clause (c) of subsection (1) of section 195, Criminal P. C. It is provided by that section that no Court shall take cognizance, inter alia, of an offence punishable under section 471, Pakistan Penal Code, when such offence is alleged to have been committed by a party to any proceeding in any Court in respect of a docu ment produced or given in evidence in such proceeding, except on the complaint in writing of such Court, or of some other Court to which such Court is subordinate. The question that falls for determination, therefore, is whether the Collector while hearing the mutation Ex. P‑2 functioned as a Court within the meaning of this provision. On behalf of the petitioner reliance has been placed by Mr. Muhammad Anwar on Lachhman Prasad Joshi v. Emperor (A I R 1930 Oudh 58). and Assudomal Ramandas Tando Muhammad Khan .v. Jhamandas Hotchand Math (A I R 1940 Sind 100). In the first case it was held by a learned Single Judge of the Oudh Chief Court that proceedings in mutation are pro ceedings within the meaning of section 476, Criminal P. C., and the Court concerned with the proceedings is a revenue Court, within the meaning of section 48 of the U. P. Land Revenue Act, 1901. It was further observed by the learned judge in the course of that case, that mutation proceedings are judicial proceedings, within the meaning of the Criminal P. C. though ordinarily they may not be so, and, consequently, there was no bar to a Revenue Court from proceeding under section 478, Criminal P. C., with regard to an offence committee in mutation proceedings before it. The reference to section 41 of the U. P. Land Revenue Act, 1901, seems to be a misprint it the published report and apparently reference was intended to be made to the definition of "revenue Court" given is section 4 (8) of that Act. "Revenue Court" is defined by that provision as meaning all or any of the following authorities Collectors, Settlement Officers, Tahsildars, etc. The position in the old Punjab area is, however, different. There is no corresponding definition of "revenue Court" in the Punjab Land Revenue Act, 1887. That Act only talks of Revenue Officers and not revenue Courts. The Punjab Tenancy Act, 1887, makes it clear that a Revenue Officer constitutes a reve nue Court only when he is exercising jurisdiction with respect to any suit described in subsection (3) of section 77 of the Act or with respect to an appeal or other proceedings arising out of any such suit. Mutation proceedings find no place in subsection (3) above referred to. Consequently, the ruling cited affords no assistance to the petitioner's learned counsel inasmuch as the legal positions of a Revenue Officer dealing with mutation proceedings in U. P. and‑in the old Punjab area are hot identical. In the second case, a Division Bench of the Sind Chief Court took the view that a Mukhtiarkar, holding an inquiry in mutation proceedings, is a revenue Court, within the mean ing of section 195 (1) (c), Criminal P. C., though his proceedings are not judicial proceedings within the meaning of section 196, Bombay Land Revenue Code. It was, therefore, held by the learned judges that where offences under sections 193 and 467 of the Penal Code were committed during mutation proceed ings, the complaint off the Mukhtiarkar was necessary before criminal proceedings could be taken against the accused. The learned judges followed the decision of a Division Bench of the Bombay High Court reported as Emperor v. Narayan Ganpaya Haynik (I L R (1914) 39 Bom. 310). In that case it was found that a Mamlatdar holding an inquiry relating to Record of Rights, under Chapter XII of the Land Revenue Code (Bombay Act V of 1879), was a revenue Court within the meaning of section 195 (1) (c) of the Criminal P. C. Here again it seem. to me that the authority is not apt. Under the Bomba3 Land Revenue Code, 1879, the expression "revenue Court" is appa rently not defined, but Chapter XII thereof, lays down the procedure of Revenue Officers when making inquiry, whether formal or summary. Section 196 of that Code expressly provides that a formal or summary inquiry under the Act, shall be deemed to be a judicial proceeding, within the meaning of sections 193, 219 and 228 of the Indian Penal Code, and the office of any authority holding a formal or summary inquiry, shall be deemed a Civil Court, for the purposes of such inquiry. So a Mamlatdar holding an inquiry of the character under consideration would in any event be a Court. No correspond ing provision exists in the Punjab Land Revenue Code. Subsection (2) of section 195, Criminal P. C., provides that in clauses (b) and (c) of subsection (1) of that section, the term "Court" includes a Civil, Revenue or Criminal Court, but does not include a Registrar or Sub‑Registrar under the Indian Registration Act, 1877. The word "includes" occurring in this context was substituted for the original word "means", by the Criminal P. C. (Amendment) Act, 1923. Learned counsel for the petitioner has suggested, therefore, that the term Court where it occurs in clause (c) of subsection (1) of section 195 should not be held confined to a Civil, Revenue or Criminal Court, but may be Court not comprehended by any of these three categories. In support of his position learned counsel cited before me a Single‑Bench judgment of the Lahore High Court published as M. M. Khan v. Emperor (A I R 1931 Lah. 662). In that case Harrison J. held that Commissioners appointed under Act XXXVII of 1850 constitute a Court, although their findings or conclusions, like those of the Privy Council, take the form of advice to superior authority and that a complaint by them was, therefore, necessary to sustain a prosecution in respect of a document placed before them in the course of an inquiry. The learned Judge adopted the wider meaning of the word "Court" as he thought that the word "includes" which had replaced the word "means" in section 195 (2) had amplified its scope. The same view was apparently taken by a Division Bench of the Calcutta High Court in Hari Charan Kundu v. Kaushi Charan Dev (A I R 1940 Cal. 286). The learned judges at the same time pointed out that the definition of the word "Court" in the Evidence Act as including all persons except arbitrators, legally authorised to take evidence, was peculiar to that Act and has no application to the Debt Settlement Boards appointed under the Bengal Agricultural Debtors Act. The actual position in that case was that the Debt Settlement Boards were neither Civil Courts nor Courts in the wider sense of that term as they did not exercise judicial functions. Authority exists for the contrary view that the 1923 amendment of subsection (2) of section 195, Criminal P. C., does not widen the connotation attached to the word "Court" and that this section has to be read along with section 476 of the Code and, therefore, the Courts that can make a complaint under section 195 are restricted to those mentioned in sec tion

476. Reference in this connection may be made to cl. C. Galstaun v. Banku Behary Dhar (A I R 1927 Cal. 621 (D B)) in which it was held that a Land Acquisition Collector is not a Court within section 195, Emperor v. Raja Kushal Pal Singh (A I R 1931 All. 443) and Emperor v. Hayat Fateh Din (A I R 1948 Lah. 184). In the last‑mentioned case, to whose decision incidentally I was a party, it was ruled that the term "Court" occurring in section 195 means the same thing as a "Court of Justice" as defined in section 20 of the Penal Code. That section defines Court of Justice" as denoting a Judge or a body of Judges acting judicially. Section 19 of the Penal Code declares that a Judge denotes not only a person who is officially designated as such, but also every person who is empowered by law to give in any legal proceeding, civil or criminal, a definitive judgment, or a judgment which, if not appealed against, would be definitive, or would acquire that character when confirmed by some other authority, or who is one of a body of persons empowered by law to give such a judgment. The facts of that particular case were that a report was made to the police, c barging another person with the Commission of an offence. The police found after investigation that the report was false and had the case cancelled by the Ilaqa Magistrate under section 173, Criminal P. C. It was held by the Full Bench that the Magistrate while acting under section 173 passed an administrative and not a judicial order and, consequently, section 195 (1) (b) did not apply to the case It was, therefore, open to the police to prosecute the maker of the report under section 211 of the Penal Code for making false charge. As was pointed out by the Privy Council in Dilworth v. Commissioner of Stamps (1899 A C 99, at pp. 105 & 106) the word "includes" is susceptible of two constructions. Their Lordships remarked that the word "include" is very generally used in interpretation clauses in order to enlarge the meaning of words and phrases occurring in the body of the statute; and when it is so used, these words or phrases must be construed as comprehending, not only such things as were signified according to their natural import, but also those things which the interpretation clauses declares that they shall include. But the context might show that the word "include" was not merely employed for the purpose of adding to the natural significance of the words or expressions defined. In certain contexts it may be equivalent to "mean and include"; and in that case it may afford an exhaustive explanation of the meaning which, for the purposes of the Act, must invariably be attached to these words or expressions. Apparently the significant interpretation of the word "include" forms the basis of the three last‑mentioned authorities. But even if it were assumed for the sake of argument that the deliberate change of the word "means" occurring in subsection (2) of section 195 to the word "includes". by the Legislature, was intended to enlarge the scope of the definition of "Court" beyond the three well‑defined categories of Civil, Criminal and Revenue Courts, the question arises whether a Revenue Officer holding an inquiry or hearing an appeal in mutation proceedings is a "Court" in this wider sense. It may be useful in this connection to obtain guidance from another Privy Council case that went up from Australia and is reported as Shell Company of Australia Limited v. Federal Commissioner of Taxation (1931 A C 275). In that case their Lordships held that the Board, created by section 41 of the Australian (Federal) Income Tax Assessment Act, 1922‑1925, to review the decisions of the Commissioner of Taxation, and whose members were to hold office for seven years, was not a Court exercising the judicial power of the Commonwealth, within the meaning of section 71 of the Constitution of Australia, but was an administration tribunal. At pages 295 and 296 of the published report the following passage occurs:‑ "Is this right? What is 'judicial power'? Their Lordship. are of opinion that one of the best definitions is that given by Griffith, C. J. in Huddart, Parker & Co. v. Moorehead (8CLR330357), where he says : 'I am of opinion that the words judicial power as used in section 71 of the Constitution mean the power which every sovereign authority must of necessity have, to decide controversies between its subjects, or between itself and its subjects, whether the rights relate to life, liberty or property. The exercise of this power does not begin until some tribunal which has power to give a binding and authoritative decision (whether subject to appeal or not) is called upon to take action"'. I apprehend that in order that an officer or authority may function as a Court, it must exercise judicial power of the State. Judged by the test laid down above, a Revenue Officer holding an inquiry or hearing an appeal in a mutation proceed ing does not become a Court, as he does not really adjudicate on rights and does not give a‑decision which is binding on the parties. Their Lordships pointed out in another part of the judgment that there are tribunals with many of the trappings of a Court which, nevertheless, are not Courts in the strict sense of exercising judicial power. In that connection the Privy Council enumerated some negative propositions on the subject which may be reproduced in extenso with advantage:‑ "(1) A tribunal is not necessarily a Court in this strict sense because it gives a final decision. (2) Nor because it hears witnesses on oath, (3) Nor because two or more contending parties appear before it between whom it has to decide. (4) Nor because it gives decisions which affect the rights of subjects. (5) Nor because there is an appeal to a Court. (6) Nor because it is a body to which a matter is referred by another` body." The mere fact, therefore, that a Revenue Officer in the course of an inquiry in a mutation proceeding may be authorised to record evidence, would not suffice to make hint a Court. He certainly exercises no judicial function in this matter as was forcefully pointed out by the Privy Council in Nit‑man Singh v. Thakur Lal Budra Partab Narain Singh (AIR1926PC100). Their Lordships characterised as a "mischievous but persistent error" to describe the proceedings for the mutation of names as a judicial proceeding in which the title to and the proprietary rights in immovable property are determined. Their Lordships observed that they are much more in the nature of a fiscal inquiry instituted in the interest of the State for the purpose of ascer taining which of the several claimants for the occupation of certain denominations of immovable property may be put into occupation of it, with greater confidence that the revenue for it will be paid. Inquiry in mutation proceedings, therefore, being just a fiscal inquiry conducted by the agents of the State for their own purposes, it could, by no stretch of interpretation, be described as a judicial proceeding. It is well settled that the decision of a Revenue Officer in mutation proceedings is subject to the determination of the rights of the parties by a Civil Court. In my opinion, therefore, a Revenue Officer, when dealing with a mutation either originally or in appeal, does not constitute a Court, even within the wider definition of that term. In Crown v. Lehna Singh (18 P R 1915) Shah Din J. of the Punjab Chief Court held that section 195, Criminal P. C., would not cover mutation proceedings as a Revenue Officer does not decide rights of parties or act judicially. It is true that this decision was given before section 195, Criminal P. C., was amended in 1923, but the reasoning of the learned judge in respect of the character of the mutation proceedings appears to me to be still apt. In a recent judgment of the Supreme Court of Pakistan reported as Muhammad Saeed and others v. Election Petitions Tribunal, West Pakistan, etc. (P L D 1957 S C (Pak.) 91) Cornelius; J. expressed the opinion that an Election Petitions Tribunal satisfied all the indicia of a Court. One of these indicia laid down by the learned judge was that the person or persons constituting a tribunal, before the latter could be described as a Court, must be entrusted with judicial functions, i.e., of deciding litigated questions according to law. We have the highest authority of the Privy Council in the present case to the effect that muta tion proceedings cannot be described as judicial functions. I am, therefore, fortified in my view that a Revenue Officer holding an inquiry or hearing an appeal in a mutation proceed ing is not a Court. In the face of this finding it seems unnecessary to consider the anomaly that would arise if the scope of section 195, Criminal P. C., is held to go beyond the purview of "Courts" mentioned in section 476, Criminal P. C. In passing, however, it may be observed that the result of the view that their may be other Courts, besides Civil, Criminal or Revenue Courts contemplated by section 195, Criminal P. C., would be that if such other Courts decided to make a complaint of one of the offences mentioned in section 195, Criminal P. C., their action would not be subject to review by any appellate authority, because section 476, Criminal P. C. does not comprehend such Courts. It may be doubted whether such a result was con templated by the Legislature. I have, therefore; reached the conclusion that the view taken by the learned Sessions judge in this case was correct and that section 195, Criminal P. C., is no bar to the continu ance of the criminal proceedings in the present case. I, therefore, dismiss the petition. Announced in Court. Z.A.S./A.H. Petition dismissed.