Jharu Lal vs Mahanath Madan Das

Mullick, J.—Mahanth Madan Das and his wife and the petitioners Jharu Lal and Baijnath Chowdhury were co-sharers in Mahal Amirpur Hardas which was sold by the Collector of Purnea for arrears of road cess under the Public Demands Recovery Act and after paying the Government demand a surplus of Rs. 126 was lying in deposit in the Purnea Collectorate to the credit of the certificate debtors. On the 5th September, 1921, a MUKHTAR named Basdeo Narain filed a MUKHTAR NAMA purporting to have been executed in his favour by all the debtors including Madan Das and his wife and he drew out the whole amount of Rs 126 from the Collectorate. On the 12th June, 1922, Madan Das lodged a complaint before the Magistrate of Purnea, stating that Jharu Lal and Baijnath had forged his name and that of his wife on the MUKHTARNAMA and praying that process should issue against them for offences under sections 468 and 471, Penal Code.

The Magistrate after calling for a report from the Certificate Officer issued process as prayed for. Thereupon Jharu Lal and Baijnath moved the Sessions Judge in order that the case might be referred to this Court u/s 439, Criminal Procedure Code, and the Sessions Judge has done so on the ground that there being no sanction by the Certificate Officer u/s 195 Criminal Procedure Code, for the prosecution of the petitioners the proceedings must be quashed.

Apart from the objection that S. 439 does not seem to authorize the Court to direct a subordinate Court to refrain from trying an accused against whom he has issued process, I think on the merits, the present application must fail. The application of the 29th June, 1922, was not, in my opinion, made to the officer entrusted with the custody of the surplus sale proceeds in his capacity as a Court. The certificate proceedings terminated after the sale of the property and the deposit of the money, and thereafter it seems that it was open to any ministerial officer of the Court to return the money to the person entitled under proper safeguards. The only proceeding of a judicial nature which the Public Demands Recovery Act contemplates after the deposit of the money is an inquiry by the Certificate Officer u/s 32(2) where the certificate debtor disputes a claim made by the certificate holder to receive any amount which might be due to him u/s 32(1)(c). It does not seem that it was necessary for the MUKHTAR to institute any proceeding at all for the withdrawal of the money. A verbal application would have sufficed and in the present case the officer who directed the refund of the money was not, in my opinion, acting as a Court or disposing of any proceeding required by the Act.

In these circumstances the sanction required by section 195 was not necessary and the reference cannot be accepted.

Bucknill, J.

I agree.