Ganesh v. Sub Divisional Magistrate — 1964 DIGILAW 335 (ALL)

JUDGMENT M.C. Desai, C.J. - A written complaint was filed by Respondent No. 3 against the Appellants in a Nyaya Panchayat. The sections mentioned in the complaint were 323 and 426, IPC but the allegations made in its body showed that the Appellants had caused damage of Rs. 230/-by their act and so really the offence alleged against them was of Section 427, IPC and not of 426, IPC. " The Nyaya Panchayat took cognizance of the complaint and tried the Appellants. The Appellants appeared before the Nyaya Panchayat and submitted to its jurisdiction over the case; they did not contend that the offence alleged against them was of Section 427, IPC and not of Section 426 and that it had no jurisdiction either over any part of the case or over that part of the case which related to the offence of Section 427, IPC. It tried and convicted them under Sections 323 and 426, IPC imposing fines under each section. They applied to a Sub-Divisional Magistrate to revise its judgment u/s 89 of the Panchayat Raj Act. There they contended that the Nyaya Panchayat had no jurisdiction to take cognizance of the offence of Section 427, IPC. The Sub-Divisional Magistrate accepted the contention, quashed their conviction for the offence of Section 426, IPC and maintained their conviction for the other offence. They then applied for certiorari for the quashing of the judgment of the Nyaya Panchavat and the order of the Sub-Divisional Magistrate on the sole contention that the Nyaya Panchayat had no jurisdiction over any part of the case and the Sub-Divisional Magistrate should have quashed the convictions for both offences. Our brother G.C. Mathur did not give a categorical finding on the question of jurisdiction raised before him. He refused certiorari on the ground that even if the Nyaya Panchayat had no jurisdiction over any part of the case no manifest injustice had been caused by its taking cognizance of the part relating to Section 323 offence. There was nothing; illegal in the conviction for the offence of Section 323, IPC and in the sentence of fine imposed for it. u/s 89 a Sub-Divisional Magistrate has jurisdiction to revise an order of a Nyaya Panchayat "if it appears to him that injustice or material irregularity has occurred". There was nothing; illegal in the conviction for the offence of Section 323, IPC and in the sentence of fine imposed for it. u/s 89 a Sub-Divisional Magistrate has jurisdiction to revise an order of a Nyaya Panchayat "if it appears to him that injustice or material irregularity has occurred". The explanation to Section 89 states that "exercise of jurisdiction in excess of that vested by law shall for purposes of this section be deemed to be a material irregularity". So, if the Nyaya Panchayat's trying the Appellants also for the offence of Section 426, IPC on the allegations making out an offence of Section 427, IPC was exercise of jurisdiction in excess of that vested by law, the Sub Divisional Magistrate was required by Section 89 to revise its judgment. Our learned brother, therefore, had to decide whether the Nyaya Panchayat's trying the Appellants on the allegations making out an offence of Section 427, IPC was exercise of jurisdiction in excess of that vested by law or not. He has not decided that question but we have heard Sri S.K. Verma at length and have little doubt that it must be answered in the negative. 2. Section 52 enumerates "offences" which "shall be cognizable by... Nyaya Panchayat". An offence u/s 323 IPC is, and an offence u/s 427 is not, mentioned in this section; so a Nyaya Panchayat has jurisdiction to take cognizance of an offence u/s 323 and has no jurisdiction to take cognizance of an offence u/s 427. We proceed on the assumption that the complaint made by the Respondent was of an offence of Section 427 even though it mentioned Section 426; nothing turns upon the section mentioned in the complaint as against the allegations made in it. As the allegations made out an offence of Section 427 the complaint must be deemed to be one for that offence and not for the offence of Section 426. The Nyaya Panchayat had jurisdiction to take cognizance of the offence of Section 323 and could not take cognizance of the other offence. As the allegations made out an offence of Section 427 the complaint must be deemed to be one for that offence and not for the offence of Section 426. The Nyaya Panchayat had jurisdiction to take cognizance of the offence of Section 323 and could not take cognizance of the other offence. Here it took cognizance of both offences but the conviction of the Appellants for the other offence and the sentence imposed for it have been quashed by the Sub-Divisional Magistrate and the result now is the same as if the Nyaya Panchayat had taken cognizance of the offence of Section 323 and refused to take cognizance of the offence of Section 427. What the Sub-Divisional Magistrate has found is that the Nyaya Panchayat ought not to have taken cognizance of the offence of Section 427 and the effect of his quashing the conviction and the sentence is the same as if the Nyaya Panchayat itself had, refused to take cognizance of it. No part of the provisions of Section 52 is infringed by the Nyaya Panchayat's taking cognizance of the offence of Section 323 and refusing to take cognizance of the offence of Section 427. There is nothing in Section 52 to suggest that if a complaint of two offences, one mentioned in it and the other not mentioned in it, is made the Nyaya Panchayat will have no jurisdiction in respect of even the former offence. There are no words laying down expressly or impliedly that the Nyaya Panchayat's jurisdiction to take cognizance of an offence mentioned in it is subject to the condition that the complaint does not mention another offence not mentioned in it. The jurisdiction conferred in respect of offences mentioned in it is absolute and subjedt to no conditions. Therefore, the Nyaya Panchayat had full jurisdiction to take cognizance of the offence of Section 323. It is immaterial that the complaint mentioned Section 427 also; it has refused to take cognizance of it (as explained above). Section 52 does not confer jurisdiction upon it to take cognizance of it and it has not taken cognizance of it. 3. Section 55 deals with cognizance of "cases", it lays down that "no court, except as otherwise provided in this Act, shall take cognizance of any case triable by.... Ny aya Panchayat". While Section 52 deals with "offences" Section 55 deals with "cases". 3. Section 55 deals with cognizance of "cases", it lays down that "no court, except as otherwise provided in this Act, shall take cognizance of any case triable by.... Ny aya Panchayat". While Section 52 deals with "offences" Section 55 deals with "cases". In Chhotey Lal v. Ghhedi Lal and Ors. (1) 1964 AWR 489 one of us and Sehgal, J. explained why in Sections 55, 56, 58 and 59 the legislature has used the word "case" whereas in Section 52 it has used the word 'offence'. A Nyaya Panchayat has jurisdiction not only over offences but also over proceedings for keeping the peace and the word 'case' has been used to comprehend proceedings in relation to offences and proceedings for keeping; the peace. The word 'case' means complaint relating to an offence or an application for taking security for keeping the peace. Therefore, the word 'case' used in Section 55 means no more than a complaint of an offence when the proceeding before it is only in respect of an offence. The Act lays down what offences are triable by a Nyaya Panchayat but does not contain any provision stating what cases or complaints are, or are not, triable by a Nyaya Panchayat. Evidently what is meant by the legislature is that a complaint relating to an offence mentioned in Section 52 is a case triable by a Nyaya Panchayat; as the offence is cognizable by it, the case, e.g. the complaint relating to it is one triable by it. Actually the Act contains no provision, other than that contained in Section 59, barring a Nyaya Panchayat's jurisdiction over a case, as there is Section 55(1) barring jurisdiction of a court. There is no provision similar to that contained in Section 55(1) barring a Nyaya Panchayat's jurisdiction. The reason is that Courts have been conferred jurisdiction over offences by the Code of Criminal Procedure and, therefore, a statutory provision barring their jurisdiction over certain offences was called for; Nyaya Panchayats, on the other hand, have jurisdiction only over those offences which are mentioned in the Act and no statutory provision barring their jurisdiction over other offences was called for. But the fact that there is a statutory provision barring jurisdiction of a court while there is no statutory provision barring jurisdiction of a Nyaya Panchayat distinguishes the question that would arise when a court takes cognizance of a case from the question that would arise when a Nyaya Panchayat takes cognizance of a complaint. When a Nyaya Panchayat takes cognizance the question would be whether the offence of which it takes cognizance is mentioned in Section 52 or not whereas when a Court takes cognizance the question would be whether it is a case triable by a Nyaya Panchayat. If a complaint is made of two offences one mentioned, and the other not mentioned, in Section 52 a Nyaya Panchayat can take cognizance of the farmer offence but not the other and at the same time it cannot be said that a Court is debarred by Section 55(1) from taking cognizance of the complaint. The complaint in respect of the two offences forms one case and since one offence is not cognizable by a Nyaya Panchayat the case cannot be said to be one triable by a Nyaya Panchayat. In other words, if such a case is lodged before a Nyaya Panchayat and it takes cognizance of only the offence mentioned in Section 52 and refuses to take cognizance of the other offence it does not infringe any provision of the Act; it has taken cognizance of an offence of which it can take cognizance and it has not taken cognizance of an offence of which it cannot take cognizance. On the other hand if such a complaint is lodged before a Court its jurisdiction to take cognizance of it is not taken away by anything contained in Section 55(1). The question whether a case is triable by a Nyaya Panchayat or not arises only when a Court takes cognizance of it; when a Nyaya Panchayat takes cognizance of complaint the question that would arise is whether it is mentioned in Section 52 or not. The law is not that a Nyaya Panchayat can take cognizance of a case only if a Court's jurisdiction to take cognizance of it is not barred by Section 55(1). No provision in the Act deals specifically with a complaint of two or more offences, some cognizable by a Nyaya Panchayat and others not. The law is not that a Nyaya Panchayat can take cognizance of a case only if a Court's jurisdiction to take cognizance of it is not barred by Section 55(1). No provision in the Act deals specifically with a complaint of two or more offences, some cognizable by a Nyaya Panchayat and others not. There is no provision barring expressly or even impliedly a Nyaya Panchayat from taking cognizance of such a composite complaint on the ground that one of the offences included in it is not mentioned in Section 52. Neither Section 52 nor Section 55(1) contain any words indicating that such a composite complaint constitutes a case not triable by a Nyaya Panchayat. There is no justification for saying that such a composite complaint is not triable by a Nyaya Panchayat any more than for saying that it is triable by a Court. The fact that a court can take cognizance of it does not mean that a Nyaya Panchayat cannot take cognizance of it in respect of the offence mentioned in Section 52. In the absence of a provision barring its jurisdiction over it, it cannot be said that it has no jurisdiction to entertain it. It is always open to a Nyaya Panchayat to take cognizance of an offence which is triable by it and ignore the complaint in respect of the other offence. When it takes cognizance of only the former offence the trial in respect for it becomes a case and it is undoubtedly a case triable by a Nyaya Panchayat even though the complaint included an offence not triable by it. After its refusal to take cognizance of it, it has ceased to be a case before it. It is as good as a complaint not made. 4. Section 56 deals with transfer of cases by courts; if a court finds that "a case is triable by a Nyaya Panchayat" it must transfer it to a Nyaya Panchayat. It is to be noted that this section applies when a complaint has already been filed before a court and it has taken cognizance of it. It refers to the "case", i.e. the whole complaint of which it has taken cognizance. If the (whole) complaint is triable by a Nyaya Panchayat then only Section 56 will apply and it will be compelled to transfer it to a Nyaya Panchayat. It refers to the "case", i.e. the whole complaint of which it has taken cognizance. If the (whole) complaint is triable by a Nyaya Panchayat then only Section 56 will apply and it will be compelled to transfer it to a Nyaya Panchayat. If the complaint is of two offences one of which is not mentioned in Section 52 it cannot be said that the whole complaint is triable by a Nyaya Panchayat. It is to be noted that Section 56 contemplates transfer of the whole case and does not contemplate splitting up of a case into two cases, one to be retained and tried by the court and the other to be transferred to a Nyaya Panchayat. When it contemplates transfer of the whole case it is clear that unless all the offences included in it can be taken cognizance of by a Nyaya Panchayat it cannot be predicated that the complaint or case is triable by a Nyaya Panchayat and Section 56 will not apply. 5. Section 58 deals with transfer of cases by Nyaya Panchayat. If it finds that it has no jurisdiction to try any case it must transfer it to the court of competent jurisdiction. Here also the emphasis is on jurisdiction to try the case and not on the jurisdiction to take cognizance of an offence. If the case is in respect of one offence, whether the Nyaya Panchayat has jurisdiction to try it or not depends upon whether the offence is mentioned in Section 52 or not. If the complaint is of only one offence and it is not one mentioned in Section 52, Section 58 applies and the Nyaya Panchayat must transfer the case because it has no jurisdiction to try it. There is nothing in this provision to indicate that if a complaint is made of two offences, one mentioned in Section 52 and the other not, it has not the power to refuse to take cognizance of the other offence and must transfer the entire complaint to a competent court on the ground that it has no jurisdiction to try the whole of it. Whether it has jurisdiction to try the case or not within the meaning of Section 58 has to be decided only with reference to the provisions of Section 52 because as we said earlier there is no other provision which deals with the jurisdiction of Nyaya Panchayats. Their jurisdiction (barring preventive jurisdiction) is defined only by reference to offences, not by reference to cases. So any reference to jurisdiction to try a case means jurisdiction to try an offence included in the case. 6. Section 59 prohibits a Nyaya Panchayat from taking cognizance of a criminal case against certain persons. 7. The above is a summary of the relevant provisions. None of them has been infringed in the instant case by the Nyaya Panchayat's trying the Appellants only for the offence of Section 323, IPC. 8. We were referred to Ram Bishal v. State (2) 1951 AWR 147 and Chatter Singh v. State (3) 1953 AWR 338 , in each of which a court took cognizance of a composite complaint of two offences, one mentioned in Section 52 and the other not and it was held by this Court that it could do so. As we pointed out earlier the question that arises in such a case is distinct from the 'question that has arisen in the instant case; the jurisdiction of a Nyaya Panchayat is governed by a provision different from that governing the jurisdiction of a court. Consequently what is decided fin respect of a court's jurisdiction is not conclusive in respect of a Nyaya Panchayat's jurisdiction. Section 52 confers jurisdiction upon Nyaya Panchayats to take cognizance of certain offences but it is not exclusive jurisdiction and if a court's jurisdiction over a certain offence is taken away it is taken away by the proyision of Section 55(1). Section 55(1), however, takes away jurisdiction over a 'case' and not over an 'offence'. Since a Nyaya Panchayat has no jurisdiction over an offence not mentioned in Section 52 it could not be said that the cases were triable by a Nyaya Panchayat and attack on convictions by the courts in the composite complaints rightly failed. In the instant case we are not concerned with the question whether a court is bound to split up a case of a composite complaint into two cases one to be tried by it and the other to be transferred to a Nyaya Panchayat. In the instant case we are not concerned with the question whether a court is bound to split up a case of a composite complaint into two cases one to be tried by it and the other to be transferred to a Nyaya Panchayat. Harish Chandra, J. in the case of Ram Bishal (2) conceded that a court can split up such a case but observed that it is not bound to do so. Brij Mohan Lal, J. in Chatter Singh's case (3), however, observed that the legislature did not intend such a case to be split up into two. The view that a Court can split up such a case supports the view that we take that it is open to a Nyaya Panchayat to take cognizance of one offence and to refuse to take cognizance of the other offence on the ground that it is not mentioned in Section 52. As regards the view that the legislature did not intend such a splitting up of a case by a court all that need be said is that it does not follow from it that a Nyaya Panchayat cannot split up a composite complaint, taking cognizance of one offence and refusing to take cognizance of the other. Section 56 may not permit the splitting up of a complaint by a court but that provision is not applicable to a Nyaya Panchayat beforewhich such a composite complaint is lodged. 9. The instant case is governed by the same principles by which Chhotey Lal v. Chheddi Lal (1) was governed. A complaint of an offence mentioned in Section 52 was filed before a Nyaya Panchayat against two persons, one of whom was a public servant. A Nyaya Panchayat is debarred by Section 59 from taking cognizance of any criminal case against a public servant. The Nyaya Panchayat still tried the two men and convicted both. On revision a Sub-Divisional Magistrate, quashed the conviction of the public servant and maintained the conviction of the other person and a Bench of this Court held that he could do so. It observed that the Nyaya Panchayat could have taken cognizance of the offence only against the person who was not a public servant; Section 59 barred its taking cognizance of the offence only against the public servant. It observed that the Nyaya Panchayat could have taken cognizance of the offence only against the person who was not a public servant; Section 59 barred its taking cognizance of the offence only against the public servant. The- trial by the Nyaya Panchayat of the public servant might have been without jurisdiction but this Court held that it did not invalidate the trial of the other person who was not a public servant, observing that after the acquittal of the public servant by the Sub-Divisional Magistrate the position was the same as if he had not been tried at all with the other. In Raghunandan Singh v. State (4) 1952 AWR 152 and Bishunta v. State (5) 1953 ALJ, 628 it was laid down that a Sub Divisional Magistrate exercising jurisdiction under the old Section 85(1) could set aside the entire order of a Nyaya Panchayat but not a part of it. The present Section 89 is wider in its scope and permits a Sub Divisional Magistrate to modify a Nyaya Panchayat's order and quashing conviction for one offence and maintaining conviction for another offence is modification of the order passed by it. The decisions in the two cases are no longer applicable. In the result we find that no case was made out for quashing the judgment of the Nyaya Panchayat or the order of the Sub Divisional Magistrate and dismiss this special appeal.