@JUDGMENTTAG-ORDER
Binod Kumar Roy and D. R. Chaudhary, JJ.@mdashThe prayer of the petitioners based on registered sale deed, mutation order and C.H.-23 issued under the Consolidation Act is to quash the order dated 20.11.1998 passed by the Collector/District Magistrate, Muzaffarnagar (respondent No. 1) in Case No. 18 of 1998 as contained in Annexure-6 registered on a miscellaneous application filed by respondent No. 3 Kali Ram as contained in Annexure-5.
2. Vide order dated 22.12.1998, the following interim order was passed in this writ petition :
"Until further orders, the operation of the order dated 20.11.1998 shall remain stayed. However, the respondent Nos. 3 and 4 will have a right to lodge an F.I.R. against the petitioner, if they so desire."
3. A perusal of the impugned order shows, inter alia, as follows :
(i) the question of correctness of the sale deed dated 3.6.1998 executed in favour of the petitioners or the relevant Will executed by Smt. Brahmo Devi widow of Tilak Ram in favour of her four daughters (the petitioners claim to be purchaser from one of them) cannot be adjudicated in this proceeding ;
(ii) the issue as to whether there was any crop standing on the land in question? and if so, to whom it belonged? a decision in relation thereto must be taken ;
(iii) the sugarcane crop was cut a month earlier by the purchasers (who are the petitioners before us) even though they had no right over the same :
(iv) the value of the sugarcane crops cut away as per the Government fixed rate comes to the tune of Rs. 3,600 ;
(v) it is ordered that the purchasers shall pay that amount to respondent No. 3 :
(vi) the Station Officer is directed to institute and register a case u/s 379 of the Indian Penal Code against the purchasers.
4. The Pleadings :
4.1. The petitioners assert, inter alia, that they are purchasers of the land in question from Smt. Sahabo ; that after the death of Tilak Ram, he was succeeded by his widow Smt. Brahmo Devi, who died after executing a registered Will in favour of her four daughters, namely. Smt. Nababo, Smt. Sahabo. Smt. Rajviri and Smt. Baljori : that during consolidation operations four separate chafes were formed and allotted to them ; that Srnt. Sahabo was allotted chak No. 424 measuring 0.1,923 hectare during consolidation operations ; that Smt. Sahabo executed a registered sale deed dated 3.6.1998 of the land aforementioned and delivered possession there of to them and since then they are in possession ; that during mutation proceedings respondent No. 3 Kali Ram filed objection in which Smt. Sahabo made statements admitting execution of her sale deed and accordingly their prayer for mutation was allowed and subsequently their names was also recorded in C.H.-23 ; that thereafter respondent No. 3 filed the application as contained in Annexure-5 on which after enquiry the impugned order was passed illegally and without jurisdiction : that neither respondent No. 3 Kali Ram nor Smt. Sahabo had filed any suit for cancellation of their sale deed and unless and until their sale deed is not cancelled, it holds good.
4.2. In the counter filed on behalf of respondent Nos. 3 and 4 (wrongly stated as on behalf of respondent Nos. 2 and 3) it has been asserted to the effect that the sale deed is a fictitious document and no possession was delivered to the petitioners and that in the facts and circumstances, the Collector has powers to entertain the application and his order is perfectly in accordance with law.
4.3. The petitioners in their rejoinder re-assert the correctness of facts stated by them.
5. The Submissions :
5.1. The main thrust of the submissions of Sri Prakash Chandra, learned counsel of the petitioners, is that on a plain reading of the order impugned, it is clear that it is an administrative order and was passed not under any statute or rules and regulations framed thereunder and no authority or jurisdiction having been conferred in the Collector/District Magistrate, Muzaffarnagar, to determine the question of title etc. of the sugarcane crops standing over the lands purchased by the petitioners and/or to determine any compensation thereof the order impugned is wholly illegal and this writ petition be allowed with costs. He highlighted that under the relevant provisions of the Code of Criminal Procedure, it is only a Judicial Magistrate who is vested with the powers to act in relation to a penal act of alleged theft.
5.2. On being asked by us, Smt. Sarita Singh, the learned standing counsel, could not show that under the provisions of the Code of Criminal Procedure or under any other Statute, the Collector/District Magistrate, Muzaffarnagar was vested with jurisdiction to pass the impugned order.
5.3. Sri Dhan Prakash, the learned counsel of respondent Nos. 3 and 4, contended as follows : Grievances were correctly made by respondent No. 3 before respondent No. 1, who after enquiry, correctly passed the order impugned doing substantial justice. As a petty sum of Rs. 3,600 has been determined as compensation, this Court need not exercise its discretionary jurisdiction.
6. The questions involved :
Following two questions are involved for our adjudication.--(i) Whether respondent No. 1 had jurisdiction to pass the impugned order? and (ii) If the answer of the first question is in the negative, whether in the facts and circumstances, this Court should refuse to exercise its jurisdiction under Article 226 of the Constitution of India?
7. Our Findings :
7.1. Perused the record.
7.2. A perusal of Annexure-5, the application dated 5.11.1998 filed by respondent No. 3 before respondent No. 1, shows that it does not disclose as to under what provision of law, it is being filed : that respondent No. 3 claimed the land bearing Chak No. 424 Khasra No. 5, area 0.1,923 hectare on which there were basmati paddy crops worth Rs. 21,000 and sugarcane crops worth Rs. 15,000 which were cut away with the help of police of Kandhla police station.
7.3. Annexure-1 is the copy of the sale deed of the petitioners.
7.4. Annexure-2 is the statement of their vendor.
7.5. Annexure-3 is the order dated 26.8.1998 of mutation of their names in relation to land in question.
7.6. Annexure-4 is C.H.-23 issued under the provisions of Consolidation of Holdings Act.
7.7. The counter-affidavit of respondent Nos. 3 and 4 dubs only the sale deed of the petitioners as a fictitious document and non-delivery of possession in regard to which we cannot adjudicate in this summary proceeding.
7.8. Section 190 of the Code of Criminal Procedure reads as follows :
"190, Cognizance of offences by Magistrates.--(1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2), may take cognizance of any offence :
(a) upon receiving a complaint of facts which constitute such offences ;
(b) upon a police report of such facts ;
(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.
(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under subsection (1) of such offences as are within his competence to inquire into or try."
7.9. Section 156(3) of the Code of Criminal Procedure reads as under :
"Any Magistrate empowered u/s 190 may order such an investigation as above-mentioned."
7.10. Section 357 of the Code of Criminal Procedure, as it stands by our State Amendment, reads as follows :
"357. Order to pay compensation.--(1) When a Court imposes a sentence of fine or a sentence (including a sentence of death) of which fine forms a part, the Court may, when passing judgment, order the whole or any part of the fine recovered to be applied :
(a) in defraying the expenses properly incurred in the prosecution ;
(b) in the payment to any person of compensation for any loss or injury caused by the offence, when compensation is, in the opinion of the Court. recoverable by such person in a civil court ;
(c) when any person is convicted of any offence for having caused the death of another person or of having abetted the commission of such an offence in paying compensation to the persons who are, under the Fatal Accidents Act, 1855 (13 of 1855), entitled to recover damages from the person sentenced for the loss resulting to them from such death ;
(d) when any person is convicted of any offence which includes theft, criminal misappropriation, criminal breach of trust, or cheating or of having dishonestly received or retained or of having voluntarily assisted in disposing of, stolen property knowing or having reason to believe the same to be stolen, in compensating any bona fide purchaser of such property for the loss of the same if such property is restored to the possession of the person entitled thereto :
Provided that if a person who may receive compensation under clauses (b), (c) and (d) is a member of the Scheduled Caste or the Scheduled Tribes and the person sentenced is not a member of such Castes or Tribes, the Court shall order the whole or any part of the fine recovered to be applied in payment of such compensation.
(2) If the fine is imposed in a case which is subject to appeal, no such payment shall be made before the period allowed for presenting the appeal has elapsed, or, if an appeal be presented, before the decision of the appeal.
(3) When a Court imposes a sentence, of which fine does not form a part, the Court may, and where the person who has suffered the loss or injury is a member of the Scheduled Castes or the Scheduled Tribes and the person sentenced is not a member of such Castes or Tribes the Court shall, when passing judgment, order the person sentenced to pay, by way of compensation, such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the person has been so sentenced.
(4) An order under this Section may also be made by an appellate court or by the High Court or Court of Session when exercising its power of revision.
(5) At the time of awarding compensation in any subsequent civil suit relating to the same matter, the Court shall take into account any sum paid or recovered as compensation under this section.
Explanation.--For the purposes of this section expressions "Scheduled Castes" and "Scheduled Tribes" shall have the meanings respectively assigned to them in clauses (24) and (25) of Article 366 of the Constitution."
7.11. Under the scheme as envisaged under the provisions of the Code of Criminal Procedure read with provisions of the Indian Penal Code, the jurisdiction to adjudicate in relation to act of theft stand vested in a Chief Judicial Magistrate/Judicial Magistrate and not in the District Magistrate/Collector, Muzaffarnagar. Respondent No. 1 who has himself clarified that he had proceeded to pass an order in his administrative capacity. Nothing could be shown by Smt. Sarita Singh learned standing counsel appearing on behalf of respondent No. 1 that the Collector/ District Magistrate. Muzaffarnagar, stood vested with such powers. Any administrative proceeding manning an enquiry in relation to ownership of the sugarcane crops and/or for determining the value was wholly without jurisdiction. The question as to whether the petitioners had committed the alleged act of theft at the time and place, etc. under the laws of the country are required to be taken cognizance and determined by the Chief Judicial Magistrate/ Executive Magistrate u/s 190 of the Code of Criminal Procedure who alone have been vested jurisdiction to pass an order to pay compensation u/s 357 of the Code of Criminal Procedure after imposing a sentence of fine or sentence of which fine forms a part. They alone are also vested with jurisdiction u/s 156(3) of the Code of Criminal Procedure to direct the police to register a F.I.R.
7.12. The impugned order is just like putting the cart before the horse. The petitioners are apparently prejudiced. If the order impugned is not set aside, in that event it will prejudice them even in the investigation by the police. Consequently, we hold that it will be in the interest of justice to set aside the order impugned.
8. The Result :
For the reasons aforementioned, we quash the order impugned and allow this writ petition.
9. In the peculiar facts and circumstances, however, we do not consider expedient to award any cost of this writ petition to the petitioner.
10. Let a writ of certiorari issue accordingly.
11. The office is directed to hand over a copy of this order within two weeks to Smt. Sarita Singh, learned standing counsel for its intimation to respondent No. 1.
