Vadakke Peediyakkal Unniankutty vs Vallapally Govindan Nair

Sadasiva Aiyar, J.—The complainant is the petitioner in revision. He was directed to pay compensation to the accused, a Tillage Munsif and

Magistrate whom he charged with taking a bribe of annas twelve for registering two vakalats and for authenticating an affidavit (Section 161 of the

Indian Penal Code) and with refusing afterwards to register and authenticate them unless a fine of Rs. 5 was paid (Section 166 of the Indian Penal

Code). The Magistrate found the complaint to be false and vexatious and directed the complainant to pay compensation to the accused. On the

facts and merits the complainant, petitioner, has, in my opinion, no case.

Mr. Sundaram, the learned Counsel for the petitioner, argued that though his client it was that brought the complaint and made the Magistrate

take cognisance of it, the Magistrate had no jurisdiction over the case, as the accused Village Munsif and Magistrate was either a Judge or a public

servant not removable from his office without the sanction of the Local Government within the meaning of Section 197 of the Criminal Procedure

Code and as the sanction of a superior Court or of a superior public servant to whom the Village Munsif and Magistrate is subordinate had not

been obtained under that section for prosecuting the Village Munsif. As the order for compensation was passed in the case, so taken cognisance

of, without jurisdiction, it was itself also bad for want of jurisdiction.

The learned Counsel, however, gave up frankly during the course of the argument one branch of his contention, namely, that the Village Munsif

was a public servant not removable from his office except with the sanction of the Government (see Section 7, Regulation 6 of 1831 which

provides that Village Headmen are removable from office by Collectors).

The Village Munsif and Magistrate is no doubt a Judge (see Section 19 of the Indian Penal Code). But when a Village Headman refuses to

register a vakalat or authenticate an affidavit unless he is given a bribe and is charged with that offence, is he accused as such Judge""? (See Section

197, Criminal Procedure Code.) In other words, is the act of registering a vakalat or authenticating an affidavit an act done by him as Judge? Rule

77 of the Civil Rules of Practice says that affidavits may be sworn before any Court or Magistrate, including a Village Magistrate, or a Sub

Registrar, Nazir or Deputy Nazir. Rule 276 states: Every vakalatnama shall be executed, or its execution attested before a judicial functionary, a

Gazetted Officer, or Assistant Monigar or other Assistant Village Headman"". As regards vakalats to be filed in the High Court Rules 23 and 24 of

the Appellate Side Rules allow authentication by a Village Munsif as also by a judicial functionary or Gazetted Officer, or the Registrar, Deputy

Registrar, Manager, Deputy Manager, or Assistant Manager of the High Court, Appellate Side. Recently Municipal Councilors, District Board and

Taluq Board members and title-holders have also been included among persons authorised to authenticate vakalats. After the best consideration

that I have been able to give to the subject, I think that persons authorised to authenticate are not bound to do so, notwithstanding that, in Rule 23

of the Appellate Side. Rules, it is said that the judicial functionary, etc., shall certify by his signature that the vakalatnama has been duly executed. I

think that it only means that there shall be such a signature in the vakalat or affidavit to constitute it a valid certificate of authentication. I do not think

it could be argued that a Member of the Governor''s Executive Council who is a Gazetted Officer is bound to authenticate all vakalats produced

before him. Having regard also to the fact that besides judicial functionaries, other officials and even non-officials having nothing to do with any

duty involving judicial functions are empowered to authenticate affidavits and vakalats, I am inclined to hold that the object of judicial functionaries

such as Village Munsifs and Village Magistrates being given powers of authentication is only for the purpose of enabling Courts, before whom the

vakalats and affidavits are produced, to treat such authentication as prima facie evidence of the genuineness of the signatures of the alleged

executants of the affidavits and vakalats; it does not at all follow that such vakalats and affidavits become the judicial records of the Court of the

Village Munsif or Magistrate acting as a judicial functionary in judicial proceedings instituted before him, or that they are produced before the

Village Munsif in his capacity as a Court of Justice. I, therefore, hold that Section 197 of the Criminal Procedure Code has no application. In the

result, the petition is dismissed. (The vakalats and affidavits in this case were intended to be filed before a District Munsif and Rules 77 and 276 of

the Civil Rules of Practice, and not Rules 23 and 24 of the High Court Appellate Side Rules which alone were referred to by the petitioner''s

learned Counsel before me, apply).