TUNDA Vs. STATE

JUDGEMENT

(1.) This is an application by Tunda etc. challenging their conviction under Section 447, I. P. C. by a Magistrate, 1st class. They plead that the learned Magistrate had no jurisdiction to try the case because the offence of Section 447, I, P. C. is exclusively triable by a Panchayati Adalat. The land upon which the applicants have been found guilty of trespassing is situated in village Dharampur which formed part of the territory of Bharatpur State. It was transferred to Uttar Pradesh and included in Mathura District by a notification dated 25-1-50. On 12-10-1950 the applicants are said to have committed the offence. On 23-6-1951, they were found guilty and convicted by the learned Magistrate. After that on 30-7-1051, the village Dharampur was included in a certain Panchayati Adalat. Till then there was no Panchayati Adalat having jurisdiction over it. Panchayati Adalats had been formed in Mathura district previously, but they were formed for villages which were included in the district at the time when the Panchayat Raj Act was enacted. As village Dharampur was included in the district on a later date, its area was not included within the jurisdiction of any Panchayati Adalat prior to 30-7-1951. I consider that on these facts the jurisdiction of the learned Magistrate to try the case was not barred by anything contained in the Panchayat Raj Act.

(2.) It is clearly laid down in Section 52 of the Panchayat Raj Act that an offence of Section 447, I. P. C. if committed within the jurisdiction of a Panchayati Adalat, is to be exclusively tried by the Panchayati Adalat. This necessarily means that there, must exist a Panchayati Adalat having jurisdiction over the area in which the offence of Section 352 is committed. If no Panchayati Adalat has been constituted having jurisdiction over that area, it cannot be said that the offence was committed within the jurisdiction of a Panchayati Adalat. If a Panchayati Adalat is constituted later on, it cannot have retrospective effect and the offence cannot, even after the, constitution of the Panchayati Adalat, be said to have been committed within the jurisdiction of the Panchayati Adalatr The jurisdiction of a Magistrate is cancelled by the Panchayat Raj Act only when a jurisdiction is vested in a Panchayati Adalat. The Act certainly does not purport to cancel the jurisdiction of a Magistrate without creating jurisdiction somewhere else. It purports simply to transfer the jurisdiction from a Magistrate to a Panchayati Adalat. ,If there is no Panchayati Adalat in existence there cannot possibly be any transfer of the jurisdiction and the Act does not at all purport to destroy the Magistrate's jurisdiction. The view that a Magistrate's jurisdiction is destroyed without corresponding jurisdiction being created in some other authority has nothing to support it. On the date on which the offence was committed and even on the date on which the learned Magistrate convicted the applicants, there was no Panchayati Adalat which had jurisdiction to try the case. Therefore, the jurisdiction of a Magistrate to try it was not lost,

(3.) There is another provision which leads to the same conclusion and that is Section 56 of the Act which requires a Magistrate, at any stage of a case, to transfer it to a Panchayati Adalat having jurisdiction on his finding that it is exclusively triable by it. This implies that there exists a Panchayati Adalat having jurisdiction. If there does not exist any Panchayati Adalat, the case cannot possibly be transferred and the provision would be meaningless. It is not that the Magistrate has to return the complaint to the complainant for presentation to a Panchayati Adalat; a complaint can be returned to the complainant for presentation to a Panchayati Adalat even if, no Panchayati Adalat exists having jurisdiction over it. As far as the physical act of return is concerned, it can be performed. But the physical act of transferring the case to a Panchayati Adalat cannot be performed unless there exists a Panchayati Adalat to receive it. There is no provision in the Act dealing with the contingency of a case being triable exclusively by a Panchayati Adalat and there being no Panchayati Adalat in existence to try it. It would have been an absurd position if the legislature created an offence and provided no tribunal to try it. The Act contains no provision dealing with the situation of there being no Panchayati Adalat to try a case exclusively triable by it because the scheme of the Act does not contemplate the possibility of such a contingency. In other words, the scheme of the Act is that the jurisdiction of a Magistrate is lost only when a Panchayati Adalat is established having jurisdiction to try it.