STATE OF MADHYA PRADESH Vs. BASHUDEO SHIVRAJ

JUDGEMENT

(1.) BY this Order the connected Criminal Revision Nos. 237 to 242 all of 1976 are also disposed of as common question has been referred to this Court by Civil Judge, Class I, Chhatarpur, under section 401 of the code of Criminal Procedure, 1973. The question posed is whether Magistrates after taking cognizance of offences triable by a Nyaya Panchayat can transfer the case to Nyaya Panchayat ?

(2.) IT appears that the Civil Judge, Class I while inspecting records of some of the Nyaya Panchayats under section 286 of the M. P. Panchayats act, 1962, came across 7 cases in which the Magistrates had transferred those cases from their Courts to the Nyaya Panchayats even after taking cognizance of the offences. It may be mentioned that the Sessions Judge is the revisional authority under the said Act and the Sessions Judge may confer the same power on any Civil Judge having jurisdiction in the area in which the nyaya Panchayat is situated. In the present case, the Civil Judge reported the matter to this Court as a revisional authority. According to him, there are conflicting decisions and the subordinate Courts are confused and are not sure as to what is the correct legal position regarding cases triable by Nyaya panchayat of which cognizance have been taken by Magistrates and whether after taking cognizance those cases can be transferred to Nyaya Panchayats for trial. The cases referred to in the report are all under the C. P. and berar Panchayats Act, 1946, which has since been repealed by the M. P. Panchayats Act, 1962 mentioned above. All the 7 cases referred to are concerning the period between 1973 to 31-3-1974 and, therefore, they are governed by the present Act and by the old Code of Criminal Procedure, 1898, and not by the new Code. Though the report is purported to have been made under section 401 of the new Code but, in fact, it should have been under section 439 of the old Code.

(3.) IN order to appreciate the decisions referred to in the report, it is first of all necessary to consider the relevant provisions of the C. P. and Berar panchayats Act. Under section 68 of the said Act notwithstanding anything contained in the Code of Criminal Procedure a Nyaya Panchayat shall have jurisdiction concurrent with that of the Criminal Courts within the local limits of whose jurisdiction the Nyaya Panchayat is situated for the trial of such offences as are specified in the Schedule. Section 72 provided that if a complaint of any offence mentioned in the Schedule is made to a Magistrate, the Magistrate shall instead of taking cognizance of the offence direct the complainant to present the complaint to the Nyaya Panchayat within whose jurisdiction the offence was committed. The earliest decision interpreting these 2 provisions is of Golvalker J. in State v. Mehtar Bisau Lodhi, 1961 M PL J 1019. wherein it has been observed that so long as a Nyaya Panchayat is functioning, the jurisdiction of Criminal Courts under the Criminal Procedure Code remains under suspension. It may be pointed out that this observation is in conflict with his earlier remark that under section 68 of the C. P. and berar Panchayats Act a Nyaya Panchayat shall have jurisdiction concurrent with that of the Criminal Courts for trial of offences under the Nyaya Panchayats Act. In a subsequent case Kekre J. in Phediya v. Mayaram, 1961 MPLJ Note 255. observed that the jurisdiction of a Magistrate to enquire into even such offences as were covered by Schedule to the Panchayats Act was not taken away. A magistrate taking cognizance of offences mentioned in the Schedule to the act would not be acting without jurisdiction. However, he further opined that action under section 72 could only be taken before cognizance is taken by Magistrate but once cognizance has been taken the case cannot be transferred to the Nyaya Panchayat. It appears that subsequently Golvalker J. realised the mistake in his earlier decision and, therefore, in a later decision in State of M. P. v. Raghubar, 1966 MPLJ Note39. he approved the view taken by Kekre J. in phediya v. Mayaram (supra) and held that the jurisdiction of Magistrates is concurrent with that of Nyaya Panchayats. Naik J. in Narmadaprasad v. Mooratsingh, 1969 MP L J 710. quoted with approval the view taken by Kekre J. in Phediya v. Mayaram (supra) though he observed the apparent conflict with the earlier decision of Golvalker J. It is, therefore, clear from the aforesaid four cases that the view taken by Kekre J. enunciates the correct legal position in this matter under the provisions of C. P. and Berar Panchayats Act.