Research › Search › Judgment

Rajasthan High Court · body

2018 DIGILAW 2206 (RAJ)

Prakash Chandra Sharma v. Amit Joshi

2018-11-19

PANKAJ BHANDARI

body2018
JUDGMENT : Pankaj Bhandari, J. Appellant has moved an application for removing the defect/s pointed out by the registry. It is contended by counsel for the applicant that against the acquittal order passed by the Gram Nyayalaya appellant preferred an appeal before the Sessions Court which was withdrawn for filing an appeal before the High Court. It is contended that in Ashwini Kumar v. State of Rajasthan 2015 (2) Criminal Law Reporter 902 High Court held that in view of Section 378 (1) (2) Cr.P.C. leave to appeal lies to the High Court and no appeal lies before the Sessions Court. 2. Office has raised the objection that in view of Section 33 (3) and 33 (7) of Gram Nyayalayas Act 2008, criminal appeal is not proper. 3. I have considered the contention and have perused the provisions of Gram Nyayalayas Act. Section 18 and section 33 of the of the Gram Nyayalayas act reads as under: Section 18. Overriding effect of Act in criminal trial - The provisions of this Act shall have effect notwithstanding anything contained in the Code of Criminal Procedure, 1973 or any other law, but save as expressly provided in this Act, the provisions of the Code shall, in so far as they are not inconsistent with the provisions of this Act, apply to the proceedings before a Gram Nyayalaya and for the purpose of the said provisions of the Code, the Gram Nyayalaya shall be deemed to be a Court of Judicial Magistrate of the first class. Section 33. Appeal in civil cases.—(1) Notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908) or any other law, and subject to subsec. (2), an appeal shall lie from every judgment or order, not being an interlocutory order, of a Gram Nyayalaya to the District Court. (2) No appeal shall lie from any judgment or order passed by the Gram Nyayalaya—(a) with the consent of the parties; (b) where the amount or value of the subject matter of a suit, claim or dispute does not exceed rupees one thousand; (c) except on a question of law, where the amount or value of the subject matter of such suit, claim or dispute does not exceed rupees five thousand. (3) Every appeal under this section shall be preferred within a period of thirty days from the date of the judgment or order of a Gram Nyayalaya: Provided that the District Court may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that the appellant had sufficient cause for not preferring the appeal within the said period. (4) An appeal preferred under sub-sec. (1) shall be heard and disposed of by the District Court within six months from the date of filing of the appeal. (5) The District Court may, pending disposal of the appeal, stay execution of the judgment or order appealed against. (6) The decision of the District Court under sub-sec. (4) shall be final and no appeal or revision shall lie from the decision of the District Court: Provided that nothing in this sub-section shall preclude any person from availing of the judicial remedies available u/Arts. 32 and 226 of the Constitution. 4. Section 18 gives an overriding effect to Gram Nyayalayas act notwithstanding anything contained in CrpC or any other law. Further Sub Clause (2) of section 33 specifically bars from filing of appeal in certain cases and clause (3) being subjected to clause (2) allows filing of appeal by using word ‘any other judgment’ which would include judgment of acquital also. 5. Under Section 33 of the Gram Nyayalayas Act there is no provisions for filing an appeal directly to the High Court, further, there is no provision of filing leave to appeal. There being a specific bar under Section 33 of filing any appeal except as provided under Sub clause (3) of Section 33, recourse to Section 378 (4) Cr.P.C. cannot be taken. 6. Gram Nyayalayas Act being a special legislation and having an overriding effect would prevail over any other law including Code of Criminal Procedure Rajasthan High Court in Sataydev Singh v. Shanti Lal (Criminal Writ Petition No. 61/2016) held that Gram Nyayalayas Act being a special law would prevail over general law. Appeal from judgment of acquittal shall thus lie to the court of session under sub clause (3) of section 33. The judgment referred by the counsel for appellant Ashwini Kumar v. State of Rajasthan (Supra), has not considered and referred to the provisions of Gram Nyayalayas Act and is thus per incurium. 7. Appeal from judgment of acquittal shall thus lie to the court of session under sub clause (3) of section 33. The judgment referred by the counsel for appellant Ashwini Kumar v. State of Rajasthan (Supra), has not considered and referred to the provisions of Gram Nyayalayas Act and is thus per incurium. 7. There being a specific bar under Section 33 of the Act, application filed by the appellant for waiving the defect/s pointed out by the registry cannot be entertained. The application filed by the appellant is rejected and criminal appeal and criminal stay application both are accordingly rejected. 8. Appellant before filing this appeal preferred an appeal before the court of session which was dismissed as withdrawn. Since appellant has a remedy available under Gram Nyayalayas Act of filing appeal before Court of Session, he is free to avail the remedy available to him.