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Allahabad High Court · body

1970 DIGILAW 134 (ALL)

Bikram v. State

1970-03-20

S.MALIK

body1970
ORDER S. Malik, J. - This is a reference made by Shri Prahlad Narain, 2nd Additional Sessions Judge, Ballia, recommending that the judgment and order dated 26-4-1969 passed by Shri K.N. Dixit, Magistrate 1st Class, Ballia, convicting the accused u/s 323 read with Section 34 IPC and sentencing each to a fine of Rs. 25/- be set aside and the accused be ordered to be tried de novo by the Nyaya Panchayat concerned. 2. The learned Sessions Judge has observed that as the learned Magistrate originally summoned the accused for an offence punishable u/s 440 of the IPC and then charged and convicted them u/s 323 read with Section 34 IPC, Sub-section (4) of Section 55 of the UP Panchayat Raj Act will not apply to this case and the learned Magistrate should have sent the case to the Nyaya Panchiyat as soon as he came to the conclusion that this was a case u/s 323 IPC and not u/s 440 IPC The learned Sessions Judge has also referred to the observations made by this Court in Chhotey Lal and Anr. v. State 1966 AWR 235 . 3. It appears that the learned Sessions Judge has failed to appreciate the correct law on the point. If at the initial stage a court after considering the allegations made against the accused treats the case as one of which he could take congnizance, but subsequently finds that the case is triable by a Nyaya Panchayat and if no summons or warrant, as the case may be, has till then been issued for the appearance of the accused the court shall transfer the case to the Nyaya Panchayat of competent jurisdiction as laid down in Section 56 of the UP Panchayat Raj Act. If, on the other hand, the court finds that the case of which it has taken cognizance of is in respect of an offence triable by the Nyaya Panchayat and summons or warrant, as the case may be, has already been issued for the appearance of the accused, it may either transfer the case to the Nyaya Panchayat or may itself dispose of the case as laid down in Sub-section (4) of Section 55 of the UP Panchayat Raj Act. 4. In the ruling cited by the learned Sessions Judge no summons or warrant for the appearance of the accused was issued. 4. In the ruling cited by the learned Sessions Judge no summons or warrant for the appearance of the accused was issued. Moreover, when the Judicial Officer City found that the case was triable by the Nyaya Panchayat, he exercised the option Under Sub-section (4) of Section 55 and sent the case to the Nyaya Panchayat, but in a revision against that order the Additional District Magistrate (Judicial) observed that the Judicial Officer had better try the case whereupon the judicial Officer retained the case on his file. 5. In this case summonses were issued for the appearance of the accused and after the accused had appeared the learned Magistrate after hearing the parties came to the conclusion that this was a case punishable u/s 323 IPC and hence framed a charge against the accused u/s 323 read with Section 34 IPC. Therefore, the learned Magistrate had not only taken congnizance of the offence but had already summoned the accused. Under the circumstances, in view of Sub-section (4) of Section 55 of the UP Panchayat Raj Act the learned Magistrate could dispose of the case and was not bound to transfer it to the Nyaya Panchayat. 6. Sub-section (4) of Section 55 of the UP Panchayat Raj Act was enacted in order that there may not be unnecessary harassment of the accused and waste of time in a case, which has proceeded in a competent court, which could try it under the provisions of the Code of Criminal Procedure, upto the stage of issue of summons or warrant, as the case may be, for the appearance of the accused even though it may be triable by a Nyaya Panchayat. The view taken by the lower court is likely to defeat the purpose for which Sub-section (4) of Section 55 seems to have been enacted, for example in a case Under Sections 307 or 392 IPC if the court after taking evidence finds that the offence committed was punishable u/s 323 IPC or u/s 379 IPC and that the value of the property was not more than Rs. 50/-, the case would have to be transferred to the Nyaya Panchayat for a fresh trial. 7. The words ".... 50/-, the case would have to be transferred to the Nyaya Panchayat for a fresh trial. 7. The words ".... Where any court has taken cognizance of any offence referred to in the said section..."appearing in Sub-section (4) of Section 55 of the UP Panchayat Raj Act do not necessarily mean that the court concerned should have taken cognizance of the case as in respect of an offence triable by the Nyaya Panchayat exclusively as laid down in Section 52 of the UP Panchayat Raj Act. In my opinion, these words include a case where after the court has taken cognizance of a case, it finds it to be in respect of an offence referred to in Section 52 triable by the Nyaya Panchayat, as otherwise the words would lose much of their value. A perusal of Sections 52, 55 and 56 of the UP Panchayat Raj Act clearly shows that what has been laid down in Sub-section (4) of Section 55 is that if after a court has taken cognizance of a case it finds that it has taken cognizance of an offence triable by the Nyaya Panchayat even though initially it took cognizance of the case as in respect of an offence not triable by the Nyaya Panchayat the court has to transfer the case to the Nyaya Panchayat as laid down in Section 56 of the UP Panchayat Raj Act unless summons or warrant, as the case may be, for the appearance of the accused has issued. If the case has proceeded beyond the stage of issue of summons or warrant, as the case may be, for the appearance of the accused, then it is open to the court concerned either to proceed with the case and dispose it of or to transfer it. This is clear from the words "the offence may be inquired into and tried by such court." 8. In view of the reasons discussed, I reject the reference and confirm the judgment and order passed by the learned Magistrate. Reference rejected.