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Himachal Pradesh High Court · body

1982 DIGILAW 35 (HP)

STATE v. GIAN SARUP

1982-07-21

T.R.HANDA, V.P.GUPTA

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JUDGMENT V. P. Gupta, J.—The following questions have been referred to this court by the Chief Judicial Magistrate, Solan, on 30th December, 1981: 1. Whether a court of Magistrate can try a case involving offence which is exclusively triable by a Gram Panchayat and trial whereof is barred under Section 198 of the H. P. Panchayati Raj Act. If so under what circumstances ; 2. Whether an order under Section 40S Cr. P. C. can confer jurisdiction on a magistrate to try a case involving offences exclusively triable by the Gram Panchayat. This reference arises out of the following facts as have been narrated in the reference order, 2. A case under Section 323 of the Indian Penal Code was pending before the Gram Panchayat, Kathon. An application under Section 408 of the Code of Criminal Procedure (hereinafter called the Code) was filed before the Sessions Judge for transfer of the case from the Gram Panchayat to the court of Chief Judicial Magistrate, Solan, on the ground that another case regarding the same occurrence was pending before the court of Chief Judicial Magistrate Solan The Sessions Judge vide his order, dated 26th August, 1981, transferred the case from the Gram Panchayat, Kathon, to the court of Chief Judicial Magistrate Solan, for trial. 3. The Himachal Pradesh Panchayati Raj Act (Act No. 19 of 1968 amended by Act No. 10 of 1978) is a State legislation but both these Acts of 1^68 and 1978 received the assent of the President of India. The Code of Criminal Procedure is also a Central Act, 4. Chapter XV of the Himachal Pradesh Panchayati Raj Act (hereinafter referred to as the Act) deals with the judicial functions of Gram Panchavats In this Chapter of the Act, various sections which are relevant for this reference read as follows: "196, (1) Offences mentioned in Schedule II or declared by the Stat Government to be cognizable by a Gram Panchayat, if committed within the jurisdiction of a Gram Panchayat, and abetment of and attempts to commit such offences shall be cognizable by such Gram Panchayat, m (2) xxx xxx 198. (2) No Court shall take cognizance of any case or suit which is cognizable under this Act by a Gram Panchayat established for the area to which the suit relates unless an order has been passed under Section 229. 199. (2) No Court shall take cognizance of any case or suit which is cognizable under this Act by a Gram Panchayat established for the area to which the suit relates unless an order has been passed under Section 229. 199. If, at any stage of the proceedings in a criminal case pending before a Magistrate, it appears that the case is triable by a Gram Panchayat, he shall at once transfer the case to that Gram Panchayat which shall try the case de novo. 222.(1) to (3) xxx xxx (4) The Gram Panchayat, shall follow the procedure prescribed by or under this Act. The Code of Civil Procedure, 1908, the Indian Evidence Act, 1872, the Code of Criminal Procedure, 1973, and the Limitation Act, 1963, shall not apply to any suit, case or proceedings, before a Gram Panchayat except as provided in this Act or as may be prescribed. Chapter XVI of the Act deals with miscellaneous provisions and in this Chapter, Section 235 of the Act reads as follows : "235. The provisions of the Judicial Officers Protection Act, 1850 shall apply to the members of the Gram Pancahyat, in respect of the acts done by it or them in judicial capacity.* In Schedule II of the Act an offence punishable under Section 323 of the Indian Penal Code is cognizable by a Gram Panchayat. Under Section 3(f) of the Act a "case" means criminal proceeding in respect of an offence triable by a Gram Panchayat. Rules have also been framed under the Act. Rule 133 reads as follows : "133. (1) A Gram Panchayat shall be deemed to be criminal court when trying a criminal case.” 5. The afore-mentioned different sections read with rule 133 ibid clearly envisage that a Gram Panchayat, when trying a case/offence under Section 323 of the Indian Penal Code (which is exclusively triable by Gram Panchayat) is performing judicial functions of a Gram Panchayat as a criminal court. Section 6 of the Code reads as follows: "6. Besides the High Courts and the Courts constituted under any law, other than this Code, there shall be, in every State, the following classes of Criminal Courts, namely :— (i) Courts of Session : (ii) Judicial Magistrates of the first class and, in any Metropolitan area, Metropolitan Magistrates ; (iii) Judicial Magistrates of the second class ; and (iv) Executive Magistrate. According to Section 6 of the Code a Gram Panchayat while trying a case/offence under Section 323 of the Indian Penal Code will be deemed to have been constituted as a criminal court under the provisions of the Act, Section 408 of the Code reads as follows : "408. (1) Whenever it is made to appear to a Sessions Judge that an order under this sub-section is expedient for the ends of justice, he may order that any particular case be transferred from one Criminal Court to another Criminal Court in his sessions division. (2) The Sessions Judge may act either on the report of the lower Court, or on the application of a party interested or on his own initiative. (3) The provisions of sub-sections (3), (4), (5), (6), (7) and (9) of section 407 shall apply in relation to an application to the Sessions Judge for an order under sub-section (1) as they apply in relation to an application to the High Court for an order under sub-section (1) of Section 407, except that sub-section (7) of that section shall so apply as if for the words. "One thousand rupees" occurring therein, the words "two hundred and fifty rupees" were substituted." 6. Now if Gram Panchayat, as discussed above is a criminal court then the Sessions Judge should ordinarily be competent to transfer a case from a Gram Panchayat to another criminal court in the Sessions Division. 7. However, the provisions of Section 408 of the Code will not be applicable to a case pending before a Gram Panchayat in view of the clear provisions of Section 222(4) of the Act, Section 222(4) of the Act clearly envisages that no provision of the Code shall apply to a case/proceeding pending in a Gram Panchayat except as provided in the Act. In the Act itself there is no provision to transfer a case/proceeding from a Gram Panchayat to the court of a Magistrate. As the Act has received the assent of the President of India, therefore, its provisions in the case of inconsistency shall over-ride the provisions of the Code. 8. Hence this reference is answered in the following manner : 1. As the Act has received the assent of the President of India, therefore, its provisions in the case of inconsistency shall over-ride the provisions of the Code. 8. Hence this reference is answered in the following manner : 1. A court of Magistrate is not competent to try a case involving an offence which is exclusively triable by a Gram Panchayat and the trial whereof is exclusively barred under Section 198 of the Himachal Pradesh Panchayati Raj Act except in accordance with the provisions of Section 229 of the Act. 2. An order under Section 408 of the Code of Criminal Procedure cannot confer jurisdiction on a Magistrate to try a case involving offences exclusively triable by a Gram Panchayat, 9. The reference is answered accordingly. As a consequence of this answer to the reference, we in exercise of our powers of revision quash the order of the Sessions Judge, dated 26th August, 1981, directing transfer of the case from the Gram Panchayat Kathon to the court of the Chief Judicial Magistrate. 10. The case file be sent to the Chief Judicial Magistrate, Solan, for further proceedings in accordance with law. Order accordingly.