Nawal Singh v. State of U. P. — 1963 DIGILAW 206 (ALL)

JUDGMENT D.S. Mathur, J. - This is a reference by the Sessions Judge of Bulandshahr with the recommendation that the order of conviction passed by the Tahsildar/Magistrate and also the order of the Assistant Sessions Judge in appeal be quashed and no fresh trial may take place. 2. The facts of the case, in brief, are that the Gaon Panchayat moved a complaint before the Nyaya Panchayat, Bharana, with the allegation that the applicant Nawal Singh, had illegally occupied some Uftada land belonging to the Gaon Panchayat and had failed to remove Bitora etc. therefrom in spite of the service of notice as contemplated by Sec. 100 of the U.P. Panchayat Raj Act. The applicant applied for the transfer of the case under Sec. 85 of the Act on the ground that he had no confidence in the impartiality of the Nyaya Panchayat. The Sub-Divisional Magistrate allowed the transfer application, withdrew the case and acting under Cl. (iii) of Sec. 85 (1) of the Act transferred the case for trial to the Tahsildar/Magistrate, Second Class, Sikandarabad. The Tahsildar/Magistrate convicted the applicant and sentenced him to a fine of Rs. 5/- and in addition to a fine of Re. 1/- for each day of the occupation after the conviction. The applicant preferred an appeal against his conviction, but the appeal was dismissed by the Assistant Sessions Judge. 3. Two interesting questions of law arise in the case: firstly, whether the Sub-Divisional Magistrate could transfer a case of the present nature to another Magistrate and secondly, whether at the time of the first conviction a continuing fine could be imposed. 4. Sec. 85(1) of the Act gives power to the Sub-Divisional Magistrate to withdraw a criminal case pending before a Nyaya Panchayat and to order trial in one of the manners detailed in Cls. (i) to (iii) thereunder. After the withdrawal of the case the Sub-Divisional Magistrate can himself try and dispose of the same; or can transfer it to another Bench of the Nyaya Panchayat; or can transfer the same for trial or disposal to any other Magistrate competent to try or dispose of the same. If a criminal case is exclusively triable by a Nyaya Panchayat, and not by any Magistrate, the Sub-Divisional Magistrate cannot act under Cl. (iii). If a criminal case is exclusively triable by a Nyaya Panchayat, and not by any Magistrate, the Sub-Divisional Magistrate cannot act under Cl. (iii). He can Ater the withdrawal of the case, himself try the case or transfer it to another Bench of the Nyaya Panchayat; but if the criminal case is cognizable by a Magistrate also it can be transferred for trial or disposal by another Magistrate competent to try or dispose of the same. 5. Sec. 100 of the Act provides that a person failing to comply with the notice given by the Gaon Panchayat under Sec. 100 shall also be liable on conviction before the Nyaya Panchayat to a fine which may extend to Rs. 10/- and in case of continuing breach to a further fine which may extend to Rs. 1/- for each day after the date of the first conviction during which the offender is proved to have persisted in the offence. The punishment provided in this section can be imposed only on conviction before the Nyaya Panchayat. Consequently, if the case is heard by a court other than the Nyaya Panchayat the punishment as provided in Sec. 100 cannot be awarded. A trial cannot be ordered to take place unnecessarily. It must end in acquittal or conviction and in case of conviction, a sentence has to be awarded, unless the person is ordered to be released after admonition or on probation. Where no punishment can be awarded, it must be held that the court not having the power to award the sentence does not have the jurisdiction to try the case. In other words, therefore, a case arising out of non-compliance of the notice under Sec. 100 can be tried by the Nyaya Panchayat and ordinarily not by any other court. 6. However, Sec. 85 gives special jurisdiction to the Sub-Divisional Magistrate in case he decides to try a case exclusively triable by the Nyaya Panchayat. It is a settled rule that while interpreting an enactment the courts of law must try to harmonise the various provisions. When Secs. 6. However, Sec. 85 gives special jurisdiction to the Sub-Divisional Magistrate in case he decides to try a case exclusively triable by the Nyaya Panchayat. It is a settled rule that while interpreting an enactment the courts of law must try to harmonise the various provisions. When Secs. 85 and 100 are read together, it shall have to be held that a criminal case under Sec. 100 of the Act is within the exclusive jurisdiction of the Nyaya Panchayat, but if the Sub-Divisional Magistrate decides to withdraw the case under Sec. 85 of the Act he can himself try or dispose of that case. Cl. (1) of Sec. 85(1) thus gives special jurisdiction to the Sub-Divisional Magistrate and not to any other Magistrate, to try the case even though prior to the withdrawal it was exclusively triable by the Nyaya Panchayat. 7. In the instant case the Sub-Divisional Magistrate transferred the case to another Magistrate who apparently was not competent to try or dispose of the case under Sec. 100. The order of the Tahsildar/Magistrate Second Class was thus beyond jurisdiction and when the Assistant Sessions Judge did not quash the conviction his order in appeal also deserves to be set aside. 8. These two courts also committed an error while passing or maintaining a continuing fine at the rate of Rs. 1/- per day till the compliance of the notice. 9. Sec. 100 has not been happily worded but the word `proved' used therein makes it clear that the additional daily fine could be imposed in case of second conviction and not the first. Cl. (b) of Sec. 100 lays down that the person disobeying the notice given by the Gaon Panchayat shall in case of continuing breach be liable to a further fine which may extend to Rs. 1/- for each day after the date of the first conviction during which the offender is proved to have persisted in the offence. On the date of the first conviction it shall not be known when the notice shall be complied, in any case, it shall not be proved to the satisfaction of the court that the person convicted is persisting in the offence. The additional punishment provided can thus be imposed after the first conviction, in other words, when the person is tried again and is convicted the second time. 10. The additional punishment provided can thus be imposed after the first conviction, in other words, when the person is tried again and is convicted the second time. 10. The learned Sessions Judge appears to have taken a lenient view on the ground that the applicant has already been put to considerable expenses. It was, however, not realised that public property cannot be maintained free of encroachment unless the courts are strict. A retrial of the case is necessary. 11. The reference is hereby accepted and the order dated 16-8-1962 of the Tahsildar/Magistrate, Second Class, Sikandarabad, and the order in appeal dated 18-10-1962 of the Assistant Sessions Judge are set aside. The order of the Sub-Divisional Magistrate transferring the case to the Tahsildar/Magistrate is also set aside. The transfer application under Sec. 85 of the U.P. Panchayat Raj Act shall be deemed to be still pending before the Sub-Divisional Magistrate who shall pass an order in accordance with the law and the trial shall then be conducted by a competent court or authority.