MEENA RAM Vs. DWARKI

JUDGEMENT

(1.) A question of some complexity and general application is involved in this case. Mina Ram petitioner was convicted by Magistrate 1st Class Kandaghat, under section 323 Indian Penal Code and sentenced to pay a fine of Rs. 50, in default to undergo one month's imprisonment. His petition for revision to the one month's rigorous imprisonment. His petition for revision to the Sessions Judge has been referred to this Court with the recommendation that the conviction be set aside as illegal and without jurisdiction because of the mandatory provisions of section 67 of the Panchayat Raj Act. Section 67 of the Panchayat Raj Act says -

(2.) It is common ground between the parties that there was an Adalat at the place, competent to try this case as provided by the Act. The question agitated is whether this section ousts the jurisdiction of a magistrate to take cognizance of and try a case which is also triable by an Adalat. The Court of a magistrate is constituted under and exercises the powers conferred by the Code of Criminal Procedure. Part II of the Code relates to the Constitution and powers of criminal courts and offices. Section 6 recognizes the existence of courts constituted under any law other than the Code and provides that there shall be five classes or criminal courts, including the three classes of magistrate, under the Code. Section 12 provides, inter alia, for the appointment of subordinate magistrates by the State Government and it further authorises the State Government to define the local areas within which such magistrate may exercise all or any the powers with which they may respectively be invested under the Code. Section 28 describes the offences congnizable by each court under the Code. Clause (c) of this section lays down that any offence under the Indian Penal Code may be tried by any Court by which such offence is shown in the eighth column of the Second Schedule to be triable. Section 190 gives the conditions requisite for initiation of proceedings before a magistrate. According to this section any Presidency Magistrate, etc., may take congizance of any offence -

(3.) The question, therefore, is whether section 67 of the Panchayat Raj Act excludes the jurisdiction of a magistrate to try a case which is trible by him under the Code, if it is also triable by an Adalat under the Panchayat Raj Act. It is a well recongnized principle of interpretation that jurisdiction must not be taken to be excluded unless there is clear language to that effect in the statute. Mere grant of jurisdiction to a new tribunal or court over certain matters does not necessarily mean that the legislature intended to deprive the ordinary court of the jurisdiction which it already possesses. Clasue (1) section 67 merely provides that the magistrate before whom a complaint or report by the police of any offence triable by the Adalat is lodged shall transfer the proceedings to the Adalat concerned. Sub-clause (2) of the section, on the other hand, expressly ousts the jurisdiction of the magistrate to take connizance of case upon his own knowledge or suspicion. This clause relates only to a part of one of the three modes according to which the proceedings in a criminal court are initiated. If the legislature intended to oust the magistrate's jurisdiction to take congizance of the cases initiated in the other two modes as well that could have been easily and appropriately expressed by saying that no court shall take congnizance of any case which is triable by an Adalat under the Act. As at present advised I am, inclined to think that the lanuage of the section does not unequivocally oust the jurisdiction of the magistrate to try a case started on a complaint or a police report, where it is also triable by an Adalat. Use of the word 'shall' in clause (i) of section 67, in my view, does not necessarily mean that disregard of this provision would vitiate the trial and consequently the conviction recorded by the magistrate. But since the question is one which may arise in a number of other cases as well and is of sufficient importance, I would like to refer the case to a larger Bench for an authoritative pronouncement. The case should, therefore, be placed before Hon'ble the Chief Justice for creation of a larger Bench.