V.N.Misra, J. - (1.) This is an application by Vindhya Basini Prasad and 14 others against the order dated 2-11-1979 of Sri S. S. Gupta, IV Additional Sessions Judge (Special Judge) Varanasi in Criminal Case No. 1 of 1977 in which he rejected the application 56 Kha and held that the suit was not barred by Section 195(1) (b), Cr. P.C.
(2.) The facts involved in this case may be briefly stated. Bindeshwari was the only son of one Ram Karan, who had five other daughters. Ram Karan executed a registered will on 3-4-1961 in favour of Bindeshwari in respect of his property. After the death of Ram Karan on 26-10-1961 the name of Bindeshwari was mutated on his property and also in consolidation proceedings which started in 1964 and chaks were allotted to him and some of the agricultural plots in village Dhanpur and Dhanpatti allotted to him were also sold by him. In 1969 Bindeshwari died leaving behind his pregnant widow Smt. Sushila Devi as his sole heir, It was alleged that after the death of Bindeshwari Shitla Prasad, brother-in-law of Bindeshwari and Bmdhyawasini Tewari real brother of Jwala Prasad, husband of Smt. Sushila, another sister of Bindeshwari in collusion with Virendra Bahadur Srivastava and Shiv Kumar Singh and, the then A. C.O. of the area and other persons entered into a criminal conspiracy and forged and fabricated six consolidation cases by illegal and corrupt means on the basis of a forged and unregistered will dated 15-10-1961 purported to have been executed by Ram Karan in favour of his son, four daughters, excluding Chamela, and his wife, showing these cases instituted in the year 1965 and their being compromised by the deceased Bindeshwari Prasad himself in that year. It was alleged that actually there were no such cases, there was no will in favour of the daughters and no compromise was ever arrived at between these people and Bindeshwari. On the basis of this compromise decree in 1965 the names of these four daughters of Ram Karan, Bindeshwari and his widow were mutated Over his land, After mutation was done Smt. Sushila Devi, the widow of Bindeshwari moved an application on 1-7-1970 to the S. D. M, Gyanpur and pointed out that these documents were forged and requested the S.D.M. to hold an inquiry into the matter. The S.D.M. referred the matter to Crime Branch, C. I. D. and a F.I.R. was also recorded against the accused persons on 24-9-1971 under Sections 420/465/466/467/468/471/474 and 120-B, I.P.C. and Section 5(3-A) of the Prevention of Corruption Act, In the case registered against these persons the C. I. D. submitted a chargesheet against them, on which requisite sanction under Section 6 Prevention of Corruption Act, was obtained under Section 197, Cr. P. C against the two Consolidation Officers and then this case proceeded against these persons. After this case proceeded the applicants made an application (56 Kha) in which they contended that the case was barred under Section 195(1)(b) Cr. P. C and this application was rejected by the learned Special Judge. It is against this order that the present revision has been filed in this Court.
(3.) The first point raised by the learned Counsel for the O. Ps. was that it was on the application of Sushila Devi, widow of Bindeshari, that the S.D.M., Gyanpur took cognizance of this case and sent this case to C. B., C. I. D. for inquiry, and the case started when the C. I. D. submitted a charge-sheet in it. Then again, when the case started like this it was urged that it would be deemed to be a complaint by the S.D.M. and the S.D.M. who is a senior revenue official and is next only to the D. M. who is Director of Consolidation, therefore, this will be deemed to be case properly constituted in spite of the bar of Section 195(1)(b), Cr. P.C., because this case was filed by a court which was superior to the court of C- O. From Section 195, Cr. P.C. however, it would seem that a superior court is the court to which an appeal ordinarily lies from the court in which forgery was committed and Clause (a) of Section 195(4) of the Code further shows that where appeals lie to more than one court, the Appellate court of inferior jurisdiction shall be the Court to which such Court shall be deemed to be subordinate. In this case, therefore, the appeals from the judgment of the C.O. lay to the S.O.C. and, therefore, he was the court to which the court of C.O. was subordinate and under Section 195, the complaint could either be filed by the C.O. or by the S.O.C. and not the S.D.M. There- fore, even if the initiation of this case on the S.D.M. asking for a report from C. B., C-1. D, was not barred he could not file this complaint because the court of C.O. was subordinate to the S.O.C. and not to him and, therefore, the complaint had to be filed either by the C.O. or the S.O.C. and not the S.D.M. Then, the court of S.D.M. was not a consolidation court because consolidation courts are created under the Consolidation of Holdings Act and Assistant Director (Consolidation) is appointed under Section 42 of the Act and there is nothing to say that the S.D.M. was so appointed Assistant Director (Consolidation) and was a Consolidation Officer, This complaint, therefore, even if it was filed by the S. D, M. was not properly filed and these proceedings were not properly initiated.;