MALTI Vs. RAM SARAN

JUDGEMENT

(1.) This is an application under Article 227 of the Constitution for the quashing of the applicants' conviction by a Nyaya Panchayat for the offence of Section 379. I. P. C, The application has been referred by our brother Beg to a larger Bench for reconsideration of the view expressed by V. D. Bhargava, J. in Ashiq Ali v. Sub-Divisional Magis-trate, Hathras, 1956 All LJ 934.

(2.) Ram Saran, opposite party No. 1, made a report against the applicants that they cut his crop valued at Rs. 500/-. The police investigated the matter and submitted a report to the Sub-Divisional Magistrate for the applicants' prosecution for the offence under Section 379, I. P. C. It is not known what they said about the value of the crop alleged to have been cut away by the applicants. The Sub-Divisional Magistrate transferred the case to a judicial Magistrate, who ordered summonses to be issued against the applicants, presumably for the offence under Section 379, I. P. C. The summonses could not be served upon the applicants and before fresh summonses could be issued by him, he received a report from the Assistant Public Prosecutor to the effect that the value of the crop was not more than Rs. 50/- and that the case should be transferred to a Nyaya Panchayat. It is not known on what basis the Assistant Public Prosecutor pleaded that the value of the crop that had been cut away, was not more than Rs. 50/-. The Judicial Magistrate at once transferred the case to a Nyaya Panchayat in exercise of the powers conferred by Section 58 of the Panchayat Raj Act. Under Section 52 of the Act an offence o! Section 379, I. P. C., where the value of the stolen property does not exceed Rs. 50/-, is cognizable by a Nyaya Panchayat, Sub-section (1) of Section 55 provides that no Court shall take cognizance of any case triable by a Nyaya Panchayat; this means that the offence under Section 379, I. P. C., in which the value of the property does not exceed Rs. 50/-, cannot be taken cognizance of by a Magistrate. Sub-section (4) lays down that notwithstanding anything contained In Sub-section (1)

(3.) The question that has been raised before us is whether it is open to a Magistrate to transfer a case triable by a Nyaya Panchayat to the Nyaya Panchayat after taking cognizance of it or is bound to dispose of it himself. We nave referred to the relevant sections and have no hesitation whatsoever in saying that he has discretion either to dispose of the case himself or to transfer it to the Nyaya Panchayat and is not bound to dispose of it himself. Section 56 is a general provision dealing with all the cases In which a Court finds that a case is triable by a Nyaya Panchayat. A Court may find this as soon as the complaint or report is made to it or may find this after it has taken cognizance of the offence. Section 55(4) deals with the particular circumstance in which a Court has taken cognizance of an offence although it is triable exclusively by a Nyaya Panchayat and has issued a summons or warrant; in this particular circumstance the Court may dispose of the case itself. The word 'may' does not have the force of 'shall' and gives discretion to the Court either to dispose of the case itself or to transfer it to the Nyaya Panchayat. It has to be contrasted with the word 'shall' used in Sub-section (1) of Section 54 and also with the word 'shall' used in Section 56. When 'may' is used in contradistinction with 'shall' it cannot have the force of 'shall'. When Sub-section (1) of Section 55 requires that no Court shall take cognizance of an offence and Sub-section (4) requires that when a Court has in spite of this prohibition taken cognizance of an offence, it "may" dispose of the casa itself, it clearly means that it is given discretion of disposing of it itself and is not bound to transfer the case to the Nyaya Panchayat. By virtue of Sub-section (1) it would be bound to transfer it to the Nyaya Panchayat because if it cannot, take cognizance of it, it cannot also proceed further after erroneously taking cognizance of it. Since it is absolutely debarred from taking cognizance of an offence or it erroneously takes cognizance of it but subsequently discovers the error, it cannot proceed further. Therefore, Sub-section (4) was enacted to give it a power to proceed further if it so liked; otherwise it would be bound to transfer the case to the Nyaya Panchayat. If the Legislature intended that it must invariably dispose of the case itself, it would have used the word 'shall' and not the word 'may' just as it has used the word 'shali' in Sub-section (1). After having used the word] 'shall' in Sub-section. (1), it would not have used the word 'may' in Sub-section (4) to serve the same purpose.