Bhim Sen vs The State Of U. P

Supreme Court15 March 1955B. Jagannadhadas · Vivian Bose · Bhuvneshwar P. Sinha

SCC(1955) 1 SCC 303
Neutral1955 INSC 14
AIRAIR 1955 SC 435
SCR[1955] 1 SCR 1444

Ratio decidendi

The rule this decision rests on

Where a statute vests limited criminal jurisdiction in a specialized court and purports to exclude the jurisdiction of courts of general jurisdiction under a bar clause, the exclusion of jurisdiction operates only in respect of cases where valid machinery for trial in the specialized court can be constituted. Where, in a particular case, no valid bench can be formed under the specialized court's constitutive provisions because one of the accused belongs to an area outside the territorial and statutory scope of that court, the bar clause does not exclude the jurisdiction of the ordinary criminal court, and that court retains jurisdiction to try the case. Rule 84 of the U.P. Panchayat Raj Act, 1947, insofar as it purports to authorize the constitution of a special bench of a Panchayati Adalat to try an accused who is a resident of a place outside the State of Uttar Pradesh, is ultra vires section 49(4) of the Act, which authorizes the making of rules only for the constitution of special benches in respect of disputes between parties of different circles or Gaon Sabhas constituted under the Act. The bar against ordinary courts taking cognizance of a case cognizable by a Panchayati Adalat under section 55 of the Act has reference to the entire proceeding in respect of all accused together, and such a bar can operate only where there exists valid machinery for the trial of the case as a whole in the Panchayati Adalat.

Written by Miss Lucy from the judgment below, not taken from a headnote.

Judgment

As delivered

PETITIONER:BHIM SEN

Vs.

RESPONDENT:THE STATE OF U. P.

DATE OF JUDGMENT:15/03/1955

BENCH:JAGANNADHADAS, B.BENCH:JAGANNADHADAS, B.BOSE, VIVIANSINHA, BHUVNESHWAR P.

CITATION:1955 AIR 435 1955 SCR (1)1444

ACT:U. P. Panchayat Raj Act, 1947 (U. P. Act XXVI of 1947),ss. 49 (1)(2)(4), 52, 55-Rule 84 framed by State Government-Theft of the value of Rs. 3-0-0 committed by three accused-One of the accused belonging to Madhya Pradesh State-Panchayat Adalat constituted under the provisions of s. 49of the Act and Rule 84 framed thereunder to try the presentcase-Whether could be properly constituted -Rule 84-WhetherIntra vires-Jurisdiction of ordinary courts Whetherexcluded-Bar under s. 55-Scope of.

HEADNOTE:Three accused were convicted by a Magistrate under s. 379of the Indian Penal Code of the offence of theft of thevalue of Rs. 3 and sentenced to a fine of Rs. 25/- each.The question for determination was whether the case shouldhave been tried by a Panchayat Adalat constituted under theU. P. Panchayat Raj Act, 1947 and the Magistrate had nojurisdiction to try it. Two of the accused belonged to U.P. State and the third belonged to Madhya Pradesh State.Section 52(1) of the Act provides that certain specifiedoffences (including the offence of theft when the value ofstolen property does1445not exceed Rs. 50/-) shall be cognizable by a PanchayatAdalat.Section 55 provides that no court shall take cognizanceof any case which is cognizable under the Act by thePanchayat Adalat.Section 49 provides:" 49(1) The Sarpanch shall, for the trial of every case,form a bench of five Panches from the panel referred to ins. 43.(2) Every such bench shall include one Panch who resides inthe area of the Gaon Sabha in which the complainant of acase resides and likewise one Panch in the area in which theaccused resides and three Panches residing in the area ofthe Gaon Sabha in which neither party resides, provided thatin police cases one Panch shall be such as may be residingin the Gaon Sabha in which the offence was committed, onePanch residing in the area of Gaon Sabha in which theaccused resides and three Panches residing in the areasother than those mentioned above".Rule 84 framed by the State Government under s. 49(4) of theAct reads as follows:-" For the purposes of trial or decision of any case orproceeding parties of which are residents of differentcircles or different districts or any one of the parties isa resident of a place not governed by the Act, theprescribed authority having jurisdiction over the PanchayatiAdalat in which a case or proceeding is instituted ortransferred for disposal shall constitute a special benchconsisting of Panches of the said Panchayati Adalat and ifconvenient and possible may include a Panch of the othercircle and shall appoint one of them as Chairman of thebench unless the Sarpanch is a member of it".Held that inasmuch as in the present case one out of theaccused belonged to Madhya Pradesh it was not possible toconstitute a bench in strict compliance with s. 49(2) of theAct to try his case. Section 84 in so far as it relates tothe constitution of a special bench where one of the partiesbelongs to a place outside the State of U. P. is ultravires. Hence no competent bench could be constituted unders. 49 of the Act for the trial of the present case in whichthere were three accused one of whom was a person belongingto a different State.Under the circumstances the jurisdiction of the ordinarycourts was not excluded.Exclusion of jurisdiction of a court of generaljurisdiction, can be brought about by the setting up of acourt of limited jurisdiction, in respect of the limitedfield, only if the vesting and the exercise of that limitedjurisdiction is clear and operative.The bar under s. 55 of the Act relates to the case as awhole and has reference to the entire proceeding in respectof all the accused together.

JUDGMENT:

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 22 of1954.

1446Appeal under Article 134(1) (c) of the Constitution from theJudgment and Order dated the 27th October 1953 of theAllahabad High Court in Criminal Reference No. 121 of 1953.K. P. Gupta and A. D. Mathur, for the appellant.K. B. Asthana and C. P. Lal, for the respondent.1955. March 15. The Judgment of the Court was delivered byJAGANNADHADAS J.-This is an appeal by leave granted by theHigh Court of Allahabad presumably under article 134(1)(c)of the Constitution. The facts are simple. Three personsincluding the appellant were, at the material time, parcelporters at the railway station Manikpur in the districtBanda of Uttar Pradesh. On the night of the 18th June,1952, they were found by two watchmen of the Watch and Wardstaff attached to the railway station, committing theft ofcertain packets of biscuits by breaking open a railwayparcel containing those packets, which as parcel porters,they had occasion to handle. First information of the samewas lodged, before the Sub-Inspector, Railway Police, by oneRam Prasad, Head Watchman. The Railway Police filed thecharge-sheet under section 379 of the Indian Penal Code onthe 20th June, 1952. The case was taken cognizance of bythe Railway Magistrate, Manikpur. All the three accusedpleaded guilty. They were convicted by the Magistrate onthe 15th July, 1952, and sentenced to a fine of Rs. 25 each.Against this conviction the present appellant filed arevision to the Sessions Judge of Banda. It is necessary atthis stage to mention that under the U. P. Panchayat RajAct, 1947, the Panchayati Adalats in U. P. have criminaljurisdiction in certain matters. The point taken before theSessions Judge was that by virtue of the said Act, thepresent case should have been tried by the Panchayati Adalatand that the Railway Magistrate had no jurisdiction. Thiscontention was accepted by the 'learned Sessions Judge. Heaccordingly made a reference to the High Court for quashingthe conviction1447and sentence. It came before a Single Judge of the HighCourt who did not feel quite satisfied that the RailwayMagistrate had jurisdiction. But without deciding thequestion one way or the other, he declined to accept thereference on the ground that the revisional jurisdiction ofthe High. Court was J. discretionary. Somewhat -'curiouslyhowever, the learned Judge granted a certificate against hisown judgment that the case is a fit one for appeal to theSupreme Court. If the learned Judge thought fit to grantleave to appeal, he might well have himself decided thequestion involved so that we should have had the benefit ofhis consideration of the same.

To decide the question of jurisdiction thus raised it isnecessary to notice the scheme of the U. P. Panchayat RajAct, 1947 (U.P. Act XXVI of 1947) (here in after referred toas the Act) and a few relevant sections of the same. It maybe mentioned that the Act appears to have undergone someamendments in the year 1952 and recently in 1955. Theseamendments have no application to the present case. Underthe Act, as it stood at the time of the commission of theoffence- and the conviction there for, the scheme thereunderis as follows: Under section 3, the State Government shall,by notification in the official Gazette, establish a GaonSabha for every village or group of villages. Under section42, the State Government or the prescribed authority shalldivide a district into circles, each circle comprising asmany areas subject to the jurisdiction of Gaon Sabhas as maybe expedient. The State Government shall also establishPanchayati Adalats for each, such circle, provided that theareas of Gaon Sabhas within each circle shall, as far aspossible, be contiguous. Under section 43, every Gaon Sabhain a circle shall elect five adults of prescribedqualification permanently residing within its jurisdictionto act as Panches in the Panchayati Adalat of that circle.The Panches so elected by all the Gaon Sabhas in a circleshall form a panel. Under section 44 all the Pancheselected under section 43 shall elect from among themselves aperson who is able to record proceedings and to act,1851448as Sarpanch of the Panchayati Adalat. As will be seen fromthe subsequent sections the Panchayati Adalat hasjurisdiction to deal with all disputes and cases, both civiland criminal, arising within its area but it is enough forthe present case to notice only those -portions whichrelate to criminal jurisdiction Section 52(1) providesthat certain specified ;Offences if committed within thejurisdiction of a Panchayati Adalat (which in this contextmust be taken to refer to local jurisdiction) shall becognizable by such Panchayati Adalat. The clauses of sub-section (1) of section 52 specify the various classes ofoffences under the Indian Penal Code and under some otherspecial and local Acts which are within the cognizance ofthe Panchayati Adalat. Section 379, Indian Penal, Code, isone of the; sections, so enumerated and it is specificallyprovided that the jurisdiction of the Adalat in respect ofthis offence is only where the theft of the stolen propertydoes not exceed Rs. 50. 'Section 51(1) provides that notwith stand anything contained in the Code of Criminal Pro-cedure, 1898, every case instituted under the Act shall beinstituted before the Sarpanch of the Panchayati Adalat ofthe circle in which the offence is committed. It is alsoprovided under section 55 that no court shall takecognizance of any case which is cognizable under the Act bythe Panchayati Adalat unless an 'Order has been passed by aSub-Divisional Magistrate under section. 85. Section 851authorises a Sub-Divisional Magistrate, on an -applicationof a party or on his own motion, to cancel the jurisdictionof the Panchayati Adalat with regard to any pending case ifthere is an apprehension of miscarriage of justice. Section49 provides the machinery for the trial of 'Cases by theformation of benches to deal with the same. It is necessaryto set out the whole of that section in so far as it relatesto criminal cases and it is as follows:

"49. (1) The Sarpanch shall, for the trial of every case,form a bench of five Panches from the panel (the panelreferred to: in section 43 above noticed). provided that atleast one of the Panches in the bench1449shall be a person who is able to record evidence andproceedings.

(2) Every such bench shall include one Panch who resides inthe area of the Gaon Sabha -in which the complainant of acase resides and likewise one Panch in the area in which theaccused resides and J. three Panches residing in the area ofthe Gaon Sabha in which neither party resides, provided thatin police cases -one Panch shall be such as may be residingin the Gaon Sabha in which the offence was committed, onePanch residing in the area of Gaon Sabha in which theaccused resides and three Panches residing in the areasother than those mentioned above.

(3)...................................................................... (4) Notwithstanding anything contained in this section, the State Government may, by rules, prescribe the constitution of special benches for' determining any dispute arising between any parties or Gaon Sabhas or different circles 'or for any other purpose".

One of the rules framed with reference to this subsection which is relevant for the present purpose is rule 84 and is as follows:

"For the purposes of trial or decision of any case or proceeding parties of which are residents of different circles or different districts or any one of the parties is a resident of a place not governed by the Act, the prescribed authority having jurisdiction over the Panchayati Adalat in which a case or proceeding is instituted or transferred for disposal shall constitute a special bench consisting of Panches of the said Panchayati Adalat and if convenient and possible may include a Panch of the other circle and shall appoint one of them as Chairman of the bench unless the Sarpanch is a member of it".

The question of jurisdiction arises with reference to' the above provisions of the Act. The charge-sheet filed by the police shows that the theft of the property involved in the case is Rs. 3. There can also be no doubt that the offence has been committed within the limits of Manikpur. It would appear, therefore, prima 1450 facie that by virtue of sections 51 and 52, the Panchayati Adalat of Manikpur had jurisdiction to try the case. If so, the jurisdiction of the regular Magistrate would appear to be barred under section 55 of the Act, since it is,not suggested that there has been any order under section 85. But there is a serious difficulty in the way of the exercise of this jurisdiction by the Adalat.

The jurisdiction of the Adalat to try any criminal case has to be exercised by a bench of the Panches to be formed by the Sarpanch under section 49 of the Act. The bench has to consist of five Panches of whom one is to be of the Gaon Sabha of Manikpur (since the offence was committed in that place and this is a police case) and another belonging to the Gaon Sabha of the accused and the other three from Gaon Sabhas outside the above two. Where there is only one accused and that accused belongs to an area within Uttar Pradesh for which a Gaon Sabha has been formed under the Act or where there are more than one accused all belonging to the area of the same Gaon Sabha, the constitution of a bench of the Panchayati Adalat for the trial of such a case presents no difficulty. But in the present case it is on the record that one-out of the three accused by name Tulsi belongs to Jubbalpore in Madhya Pradesh. It was, therefore, not possible to constitute a bench in strict compliance with section 49(2) of the Act to try his case. Recourse had, therefore, to be had to section 49(4) and the rules framed thereunder. The relevant rule 84 (which has been quoted above) no doubt provides for the constitution of special benches to try cases where there are more than one accused who are residents of different areas. Now this rule in so far as it provides for cases wherein all the parties concerned are residents.of Uttar Pradesh may be unexception- able. But whether it is valid in so far as it provides 'for the exercise of jurisdiction in respect of a resident outside the State may be open to argument on more grounds than one. In the present case, it is sufficient to consider whether this portion of the rule is valid, with reference to section 49(4) under which it is 1451 framed. Section 49(4) authorises the Government to frame rules for the constitution of special benches "for determining disputes between parties of different circles or Gaon Sabhas or for any other purpose". "Circles or Gaon Sabhas" mentioned herein has reference only to circles and Gaon Sabhas constituted.' under the Act. This does not authorise the framing of a rule in so far as it relates to a person belonging to a place outside the State. Nor can the phrase "for any other purpose" in sub-section (4) of section 49 whatever that may mean-be construed so widely as to authorise a rule affecting such an outsider, assuming without deciding, that a statutory provision by a State Legislature can, directly or by delegation and in terms, validly provide for the exercise of such jurisdiction by a Panchayati Adalat. We are clearly of the opinion that rule 84 in so far as it relates to the constitution of a special bench where one of the parties belongs to a place outside the State is ultra vires. Hence no competent bench could be constituted under section 49 of the Act for the trial of the present case in which there are three accused of whom one is a person belonging to a different State.

Now, in these circumstances, it has to be considered whether the trial of this case by the ordinary criminal Court is barred. The bar of the jurisdiction of the ordinary criminal Court is brought about by section 55 of the Act. But it requires to be noticed that the bar which is brought about by the section, is a bar which relates to the case as a whole. Because, in, terms, what it says is "no court shall take cognizance of any case which is cognizable under the Act by a Panchayati Adalat". Under section 2(a) of the Act a "case" is defined as meaning "criminal proceeding in respect of an offence triable by a Panchayati Adalat" and "Panchayati Adalat" is defined as "including a bench thereof". It is clear, therefore, that this bar has reference to the entire proceeding, i.e., as involving all the accused together. Such a bar in. respect of the entire case can be operative only where there is a valid machinery for the trial thereof. In the present case in which at 'least one of the accused 1452 (though not this very. appellant) is a person coming from an area outside the local extent of the Act, any -bench of the Adalat that can be validly formed there-. under cannot try the three accused together and hence can have no Jurisdiction over the whole case. The jurisdiction of the regular criminal court in respect of such a case cannot be taken away by the operation of section 55 of the Act. It is to be remembered that the jurisdiction of the criminal courts under section 5 of the Code of Criminal Procedure is comprehensive. That section enjoins, that all offences under the Indian Penal Code shall be investigated, enquired into, tried and otherwise dealt with "according 'to the provisions hereinafter contained". To the extent that no valid machinery is set up under the U.P. Panchayat Raj' Act for the trial of any Particular case, the jurisdiction of the ordinary criminal court under section 5 Code of Criminal Procedure cannot be held to have been excluded. Exclusion of jurisdiction of a court of general jurisdiction, can be brought about by the setting no of a court of limited jurisdiction, in respect of the limited field, only if the vesting and the exercise of that limited jurisdiction is clear and operative. Where, as in this case, there is no adequate machinery for the exercise of this jurisdiction in a specific case, we -cannot hold that the exercise of jurisdiction in respect of such a case by the Court of general jurisdiction is illegal.

We are, therefore, of the opinion that the Railway Magistrate had the jurisdiction to try the case. The appeal is accordingly dismissed.

Appeal dismissed.

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