STATE Vs. ISMAIL SHER GOJRI

JUDGEMENT

(1.) THIS is a criminal reference made by the C. J. M. Anantnag in a criminal revision. The learned C. J. M. has recommended that the order dated 6-11-1971 passed by the Judicial Magistrate, Pulwama, declining to take cognizance of the case be set aside and the magistrate directed to proceed with the disposal of the case in accordance with law.

(2.) TO put in brief the facts of the case are: That the Police Awantipora submitted the charge sheet in a criminal case under Section 173 Cr. P. C. before the Judicial Magistrate Pulwama against the accused-respondents. According to the charge sheet the accused had committed offences punishable under Sections 447 and 323 R. P. C. After the challan was presented, before the magistrate, an objection was taken on behalf of the accused that the criminal court was not competent to try the offences inasmuch as the jurisdiction of the magistrate to hear and try the case was barred under Section 96 of the Jammu and Kashmir Village Panchayat Amendment Act, 1973. The argument was that under this section exclusive jurisdiction has been conferred on the Panchayati Adalat to try offences, inter alia those under Sections 447 and 323 R. P. C. This argument prevailed with the learned Magistrate who by the impugned order returned the challan to the Police for presenting it before the competent forum. In this way the Magistrate declined to proceed with the trial of tha case. Aggrieved by this order, the State went up in revision before the C. J. M. Anantnag who has made this reference.

(3.) THE learned Advocate General has submitted that Section 96 of the Village Panchayat Act, did not operate as a bar to the trial of offences inasmuch as the complainant before the Magistrate was the Police. Under proviso to Section 75 of the Village Panchayat Act, Panchayati Adalat could not take cognizance of any case relating to offences specified in the First Schedule in which either the complainant or the accused is a public servant. The present case was, therefore, saved by the proviso. It is further submitted that after the Police had investigated the case and the investigation had revealed that the accused were responsible for committing the offences, the only course left to the Police was to submit the charge-sheet before the Magistrate in accordance with Section 173 Cr. P. C. and the police could not lay the challan before the Panchayati Adalat.