Full Judgment Text
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PETITIONER:
BHIM SEN
Vs.
RESPONDENT:
THE STATE OF U. P.
DATE OF JUDGMENT:
15/03/1955
BENCH:
JAGANNADHADAS, B.
BENCH:
JAGANNADHADAS, B.
BOSE, VIVIAN
SINHA, BHUVNESHWAR P.
CITATION:
1955 AIR 435 1955 SCR (1)1444
ACT:
U. P. Panchayat Raj Act, 1947 (U. P. Act XXVI of 1947),
ss. 49 (1)(2)(4), 52, 55-Rule 84 framed by State Government-
Theft of the value of Rs. 3-0-0 committed by three accused-
One of the accused belonging to Madhya Pradesh State-
Panchayat Adalat constituted under the provisions of s. 49
of the Act and Rule 84 framed thereunder to try the present
case-Whether could be properly constituted -Rule 84-Whether
Intra vires-Jurisdiction of ordinary courts Whether
excluded-Bar under s. 55-Scope of.
HEADNOTE:
Three accused were convicted by a Magistrate under s. 379
of the Indian Penal Code of the offence of theft of the
value of Rs. 3 and sentenced to a fine of Rs. 25/- each.
The question for determination was whether the case should
have been tried by a Panchayat Adalat constituted under the
U. P. Panchayat Raj Act, 1947 and the Magistrate had no
jurisdiction to try it. Two of the accused belonged to U.
P. State and the third belonged to Madhya Pradesh State.
Section 52(1) of the Act provides that certain specified
offences (including the offence of theft when the value of
stolen property does
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not exceed Rs. 50/-) shall be cognizable by a Panchayat
Adalat.
Section 55 provides that no court shall take cognizance
of any case which is cognizable under the Act by the
Panchayat Adalat.
Section 49 provides:
" 49(1) The Sarpanch shall, for the trial of every case,
form a bench of five Panches from the panel referred to in
s. 43.
(2) Every such bench shall include one Panch who resides in
the area of the Gaon Sabha in which the complainant of a
case resides and likewise one Panch in the area in which the
accused resides and three Panches residing in the area of
the Gaon Sabha in which neither party resides, provided that
in police cases one Panch shall be such as may be residing
in the Gaon Sabha in which the offence was committed, one
Panch residing in the area of Gaon Sabha in which the
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accused resides and three Panches residing in the areas
other than those mentioned above".
Rule 84 framed by the State Government under s. 49(4) of the
Act reads as follows:-
" For the purposes of trial or decision of any case or
proceeding parties of which are residents of different
circles or different districts or any one of the parties is
a resident of a place not governed by the Act, the
prescribed authority having jurisdiction over the Panchayati
Adalat in which a case or proceeding is instituted or
transferred for disposal shall constitute a special bench
consisting of Panches of the said Panchayati Adalat and if
convenient and possible may include a Panch of the other
circle and shall appoint one of them as Chairman of the
bench unless the Sarpanch is a member of it".
Held that inasmuch as in the present case one out of the
accused belonged to Madhya Pradesh it was not possible to
constitute a bench in strict compliance with s. 49(2) of the
Act to try his case. Section 84 in so far as it relates to
the constitution of a special bench where one of the parties
belongs to a place outside the State of U. P. is ultra
vires. Hence no competent bench could be constituted under
s. 49 of the Act for the trial of the present case in which
there were three accused one of whom was a person belonging
to a different State.
Under the circumstances the jurisdiction of the ordinary
courts was not excluded.
Exclusion of jurisdiction of a court of general
jurisdiction, can be brought about by the setting up of a
court of limited jurisdiction, in respect of the limited
field, only if the vesting and the exercise of that limited
jurisdiction is clear and operative.
The bar under s. 55 of the Act relates to the case as a
whole and has reference to the entire proceeding in respect
of all the accused together.
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 22 of
1954.
1446
Appeal under Article 134(1) (c) of the Constitution from the
Judgment and Order dated the 27th October 1953 of the
Allahabad High Court in Criminal Reference No. 121 of 1953.
K. P. Gupta and A. D. Mathur, for the appellant.
K. B. Asthana and C. P. Lal, for the respondent.
1955. March 15. The Judgment of the Court was delivered by
JAGANNADHADAS J.-This is an appeal by leave granted by the
High Court of Allahabad presumably under article 134(1)(c)
of the Constitution. The facts are simple. Three persons
including the appellant were, at the material time, parcel
porters at the railway station Manikpur in the district
Banda of Uttar Pradesh. On the night of the 18th June,
1952, they were found by two watchmen of the Watch and Ward
staff attached to the railway station, committing theft of
certain packets of biscuits by breaking open a railway
parcel containing those packets, which as parcel porters,
they had occasion to handle. First information of the same
was lodged, before the Sub-Inspector, Railway Police, by one
Ram Prasad, Head Watchman. The Railway Police filed the
charge-sheet under section 379 of the Indian Penal Code on
the 20th June, 1952. The case was taken cognizance of by
the Railway Magistrate, Manikpur. All the three accused
pleaded guilty. They were convicted by the Magistrate on
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the 15th July, 1952, and sentenced to a fine of Rs. 25 each.
Against this conviction the present appellant filed a
revision to the Sessions Judge of Banda. It is necessary at
this stage to mention that under the U. P. Panchayat Raj
Act, 1947, the Panchayati Adalats in U. P. have criminal
jurisdiction in certain matters. The point taken before the
Sessions Judge was that by virtue of the said Act, the
present case should have been tried by the Panchayati Adalat
and that the Railway Magistrate had no jurisdiction. This
contention was accepted by the ’learned Sessions Judge. He
accordingly made a reference to the High Court for quashing
the conviction
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and sentence. It came before a Single Judge of the High
Court who did not feel quite satisfied that the Railway
Magistrate had jurisdiction. But without deciding the
question one way or the other, he declined to accept the
reference on the ground that the revisional jurisdiction of
the High. Court was J. discretionary. Somewhat -’curiously
however, the learned Judge granted a certificate against his
own judgment that the case is a fit one for appeal to the
Supreme Court. If the learned Judge thought fit to grant
leave to appeal, he might well have himself decided the
question involved so that we should have had the benefit of
his consideration of the same.
To decide the question of jurisdiction thus raised it is
necessary to notice the scheme of the U. P. Panchayat Raj
Act, 1947 (U.P. Act XXVI of 1947) (here in after referred to
as the Act) and a few relevant sections of the same. It may
be mentioned that the Act appears to have undergone some
amendments in the year 1952 and recently in 1955. These
amendments have no application to the present case. Under
the Act, as it stood at the time of the commission of the
offence- and the conviction there for, the scheme thereunder
is as follows: Under section 3, the State Government shall,
by notification in the official Gazette, establish a Gaon
Sabha for every village or group of villages. Under section
42, the State Government or the prescribed authority shall
divide a district into circles, each circle comprising as
many areas subject to the jurisdiction of Gaon Sabhas as may
be expedient. The State Government shall also establish
Panchayati Adalats for each, such circle, provided that the
areas of Gaon Sabhas within each circle shall, as far as
possible, be contiguous. Under section 43, every Gaon Sabha
in a circle shall elect five adults of prescribed
qualification permanently residing within its jurisdiction
to act as Panches in the Panchayati Adalat of that circle.
The Panches so elected by all the Gaon Sabhas in a circle
shall form a panel. Under section 44 all the Panches
elected under section 43 shall elect from among themselves a
person who is able to record proceedings and to act,
185
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as Sarpanch of the Panchayati Adalat. As will be seen from
the subsequent sections the Panchayati Adalat has
jurisdiction to deal with all disputes and cases, both civil
and criminal, arising within its area but it is enough for
the present case to notice only those -portions which
relate to criminal jurisdiction Section 52(1) provides
that certain specified ;Offences if committed within the
jurisdiction of a Panchayati Adalat (which in this context
must be taken to refer to local jurisdiction) shall be
cognizable by such Panchayati Adalat. The clauses of sub-
section (1) of section 52 specify the various classes of
offences under the Indian Penal Code and under some other
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special and local Acts which are within the cognizance of
the Panchayati Adalat. Section 379, Indian Penal, Code, is
one of the; sections, so enumerated and it is specifically
provided that the jurisdiction of the Adalat in respect of
this offence is only where the theft of the stolen property
does not exceed Rs. 50. ’Section 51(1) provides that not
with stand anything contained in the Code of Criminal Pro-
cedure, 1898, every case instituted under the Act shall be
instituted before the Sarpanch of the Panchayati Adalat of
the circle in which the offence is committed. It is also
provided under section 55 that no court shall take
cognizance of any case which is cognizable under the Act by
the Panchayati Adalat unless an ’Order has been passed by a
Sub-Divisional Magistrate under section. 85. Section 851
authorises a Sub-Divisional Magistrate, on an -application
of a party or on his own motion, to cancel the jurisdiction
of the Panchayati Adalat with regard to any pending case if
there is an apprehension of miscarriage of justice. Section
49 provides the machinery for the trial of ’Cases by the
formation of benches to deal with the same. It is necessary
to set out the whole of that section in so far as it relates
to criminal cases and it is as follows:
"49. (1) The Sarpanch shall, for the trial of every case,
form a bench of five Panches from the panel (the panel
referred to: in section 43 above noticed). provided that at
least one of the Panches in the bench
1449
shall be a person who is able to record evidence and
proceedings.
(2) Every such bench shall include one Panch who resides in
the area of the Gaon Sabha -in which the complainant of a
case resides and likewise one Panch in the area in which the
accused resides and J. three Panches residing in the area of
the Gaon Sabha in which neither party resides, provided that
in police cases -one Panch shall be such as may be residing
in the Gaon Sabha in which the offence was committed, one
Panch residing in the area of Gaon Sabha in which the
accused resides and three Panches residing in the areas
other than those mentioned above.
(3)......................................................................
(4) Notwithstanding anything contained in this section, the
State Government may, by rules, prescribe the constitution
of special benches for’ determining any dispute arising
between any parties or Gaon Sabhas or different circles ’or
for any other purpose".
One of the rules framed with reference to this subsection
which is relevant for the present purpose is rule 84 and is
as follows:
"For the purposes of trial or decision of any case or
proceeding parties of which are residents of different
circles or different districts or any one of the parties is
a resident of a place not governed by the Act, the
prescribed authority having jurisdiction over the Panchayati
Adalat in which a case or proceeding is instituted or
transferred for disposal shall constitute a special bench
consisting of Panches of the said Panchayati Adalat and if
convenient and possible may include a Panch of the other
circle and shall appoint one of them as Chairman of the
bench unless the Sarpanch is a member of it".
The question of jurisdiction arises with reference to’ the
above provisions of the Act. The charge-sheet filed by the
police shows that the theft of the property involved in the
case is Rs. 3. There can also be no doubt that the offence
has been committed within the limits of Manikpur. It would
appear, therefore, prima
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1450
facie that by virtue of sections 51 and 52, the Panchayati
Adalat of Manikpur had jurisdiction to try the case. If so,
the jurisdiction of the regular Magistrate would appear to
be barred under section 55 of the Act, since it is,not
suggested that there has been any order under section 85.
But there is a serious difficulty in the way of the exercise
of this jurisdiction by the Adalat.
The jurisdiction of the Adalat to try any criminal case has
to be exercised by a bench of the Panches to be formed by
the Sarpanch under section 49 of the Act. The bench has to
consist of five Panches of whom one is to be of the Gaon
Sabha of Manikpur (since the offence was committed in that
place and this is a police case) and another belonging to
the Gaon Sabha of the accused and the other three from Gaon
Sabhas outside the above two. Where there is only one
accused and that accused belongs to an area within Uttar
Pradesh for which a Gaon Sabha has been formed under the Act
or where there are more than one accused all belonging to
the area of the same Gaon Sabha, the constitution of a bench
of the Panchayati Adalat for the trial of such a case
presents no difficulty. But in the present case it is on
the record that one-out of the three accused by name Tulsi
belongs to Jubbalpore in Madhya Pradesh. It was, therefore,
not possible to constitute a bench in strict compliance with
section 49(2) of the Act to try his case. Recourse had,
therefore, to be had to section 49(4) and the rules framed
thereunder. The relevant rule 84 (which has been quoted
above) no doubt provides for the constitution of special
benches to try cases where there are more than one accused
who are residents of different areas. Now this rule in so
far as it provides for cases wherein all the parties
concerned are residents.of Uttar Pradesh may be unexception-
able. But whether it is valid in so far as it provides ’for
the exercise of jurisdiction in respect of a resident
outside the State may be open to argument on more grounds
than one. In the present case, it is sufficient to consider
whether this portion of the rule is valid, with reference to
section 49(4) under which it is
1451
framed. Section 49(4) authorises the Government to frame
rules for the constitution of special benches "for
determining disputes between parties of different circles or
Gaon Sabhas or for any other purpose". "Circles or Gaon
Sabhas" mentioned herein has reference only to circles and
Gaon Sabhas constituted.’ under the Act. This does not
authorise the framing of a rule in so far as it relates to a
person belonging to a place outside the State. Nor can the
phrase "for any other purpose" in sub-section (4) of section
49 whatever that may mean-be construed so widely as to
authorise a rule affecting such an outsider, assuming
without deciding, that a statutory provision by a State
Legislature can, directly or by delegation and in terms,
validly provide for the exercise of such jurisdiction by a
Panchayati Adalat. We are clearly of the opinion that rule
84 in so far as it relates to the constitution of a special
bench where one of the parties belongs to a place outside
the State is ultra vires. Hence no competent bench could be
constituted under section 49 of the Act for the trial of the
present case in which there are three accused of whom one is
a person belonging to a different State.
Now, in these circumstances, it has to be considered whether
the trial of this case by the ordinary criminal Court is
barred. The bar of the jurisdiction of the ordinary
criminal Court is brought about by section 55 of the Act.
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But it requires to be noticed that the bar which is brought
about by the section, is a bar which relates to the case as
a whole. Because, in, terms, what it says is "no court
shall take cognizance of any case which is cognizable under
the Act by a Panchayati Adalat". Under section 2(a) of the
Act a "case" is defined as meaning "criminal proceeding in
respect of an offence triable by a Panchayati Adalat" and
"Panchayati Adalat" is defined as "including a bench
thereof". It is clear, therefore, that this bar has
reference to the entire proceeding, i.e., as involving all
the accused together. Such a bar in. respect of the entire
case can be operative only where there is a valid machinery
for the trial thereof. In the present case in which at
’least one of the accused
1452
(though not this very. appellant) is a person coming from an
area outside the local extent of the Act, any -bench of the
Adalat that can be validly formed there-. under cannot try
the three accused together and hence can have no
Jurisdiction over the whole case. The jurisdiction of the
regular criminal court in respect of such a case cannot be
taken away by the operation of section 55 of the Act. It is
to be remembered that the jurisdiction of the criminal
courts under section 5 of the Code of Criminal Procedure is
comprehensive. That section enjoins, that all offences under
the Indian Penal Code shall be investigated, enquired into,
tried and otherwise dealt with "according ’to the provisions
hereinafter contained". To the extent that no valid
machinery is set up under the U.P. Panchayat Raj’ Act for
the trial of any Particular case, the jurisdiction of the
ordinary criminal court under section 5 Code of Criminal
Procedure cannot be held to have been excluded. Exclusion
of jurisdiction of a court of general jurisdiction, can be
brought about by the setting no of a court of limited
jurisdiction, in respect of the limited field, only if the
vesting and the exercise of that limited jurisdiction is
clear and operative. Where, as in this case, there is no
adequate machinery for the exercise of this jurisdiction in
a specific case, we -cannot hold that the exercise of
jurisdiction in respect of such a case by the Court of
general jurisdiction is illegal.
We are, therefore, of the opinion that the Railway
Magistrate had the jurisdiction to try the case.
The appeal is accordingly dismissed.
Appeal dismissed.
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