Basantu and Others vs Kanhaiya Singh and Others

Capoor, J.—This application came up for hearing before our Brother, Mathur, J., who directed the papers to be laid before the Hon''ble the Chief Justice for referring the following question for decision to a larger Bench:

"Can the High Court interfere with the order of the Nyaya Panchayat passed under the U. P. Panchayat Raj Act and also the order of the Sub-Divisional Magistrate in revision u/s 89 of the Act in exercise of the inherent jurisdiction u/s 601-A, Cr. P. C.?"

In order to arrive at a correct decision of the question under consideration reference may usefully be made to some of the relevant pro vision a of the U. P. Panchayat Raj Act, 1947, Section 83 of that Act prescribes the procedure for the trial of a civil, criminal or revenue case cognizable by a Nyaya Panchayat. It, inter alia, provides that the Nyaya Panchayat shall follow the procedure presented by or under the Act and further that the C. P. C. 1908, Cr. P. C. 1898, the Indian Evidence Act, 1872 and the Indian Limitation Act, 1908 shall not apply to any such case except as provided in the Act or as may be prescribed. There is nothing in the Act or in the rules framed thereunder indicating that Section 561-A of Cr. P. C. will be applicable to a criminal case tried by a Nyaya Panchayat. Section By provides for a revision of an order made by a Nyaya Panchayat in a civil, criminal or revenue case tried by it. It also sets forth the grounds on which an application in revision would be entertainable. Sub-section (4) of that section lays down that except as provided, a decree or order passed by the Nyaya Panchayat in any civil, criminal or revenue case shall not be open to appeal or revision in any court.

On a reference to the aforesaid provisions the following facts stand in bold relief:--

That the Nyaya Panchayat is to follow the procedure laid down in the Act or in the rules framed thereunder while trying a civil, criminal or a revenue case.

That, inter alia, the Code of Criminal Procedure is not applicable to a criminal case before a Nyaya Panchayat.

That the order of a Nyaya Panchayat is revisable on grounds stated in Section 89,

and

That an order passed by a Nyaya Panchayat is not open to appeal or revision in any Court except as provided in the Act. stated differently, the jurisdiction of the High Court to interfere with an order passed by a Nyaya Panchayat or by the revising authority in the exercise of revisional or appellate powers is expressly barred. The question for consideration is as to whether a High Court can, u/s 561-A or Cr. P. C., interiors with an order passed under the U. P. Panchayat Raj Act either by the Nyaya Panchayat or by the revising authority. That section reads as below:

"Nothing in this Code shall be deemed to limit or affect that inherent cower of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of Justice."

The section does not confer any additional powers on a High Court, it merely declares that such inherent powers as the High Court possesses, inter alia, to prevent abuse of the process of any court or otherwise to secure the ends of justice shall not be limited or affected by any provision in the Cr. P. C. The section is a statutory recognition of the powers which inhered in the High Court. The section was introduced in the statute book by the Cr. P. C. (Amendment) Act, 1923, as it was held by this Court that in the exercise of inherent powers it could not expunge objectionable remarks in the judgment of a lower court.

In the case of Vishnu Ghanshyam v. Emperor, AIR 1941 Nag 97, the following observations were made at page 98 by Vivian Bose, J :--

"It is urged that the High Court has powers u/s 581A, Cr. P. C. But I am clear that that section can have no application to a matter of this kind. That section confers no fresh or new or additional powers on the High Court. It merely states that the existing powers are not circumscribed by anything in the Cr. P. C. except in so far as the sections expressly dealing with them do so." Section 30 of the Press (Emergency powers) Act curtailed the powers of the High court with regard to the cases arising under that Act and the question arose whether in spite of such curtailment the High Court could interfere in the exercise of its inherent powers and the contention was repelled in the following words:--

"It is well known that inherent powers cannot be invoked where the Legislature expressly deals with the matter. It has dealt with the matter in this case. It has stated that no proceeding purporting to be taken under the Act shall he called in question except in one particular matter and in one particular way. That is express and absolute. No general section conferring inherent powers can be involved in the face of that."

The revisional powers of the High Court were taken away by Clause 26 of the Special Criminal Courts Ordinance (2 of 1942) and a question arose as to whether the High Court could interfere with the orders passed by the criminal courts in the exercise of its inherent jurisdiction and their Lordships of the judicial Committee held that "no court could claim inherent jurisdiction to exercise powers expressly taken away by legislation. "Clause 26 of the Special criminal Courts Ordinance, 1942 expressly took away all powers of revision by the High Court and consequently the High Court did not possess inherent jurisdiction to interfere with the order o! Special Magistrate acting under that Ordinance, vide AIR 1946 169 (Privy Council)

It has already been seen that the U. P. Panchayat Raj Act has provided a procedure for the trial of a criminal case by a Nyaya Panchayat and has excluded the application of the provisions of the Cr. P. C. to such a trial. It has further barred the Jurisdiction of any court to interfere with an order made by the Nyaya Panchayat in appeal or revision except in accordance with the provisions of the Act. The High Court has no appellate or revisional Jurisdiction to interfere with an order made by a Nyaya Panchayat or by the Sub-Divisional Magistrate in the exercise of revisional powers and keeping in view the Privy Council decision in AIR 1946 169 (Privy Council) in particular it appears to be clear that in the exercise of its inherent powers the High Court cannot interfere with an order made by a Nyaya Panchayat in a criminal case tried and cognizable by it or with an order made by the Sub-Divisional Magistrate in the exercise of his revisional powers. The expression "any civil, criminal or revenue case in a Nyaya Panchayat" was interpreted by Agarwala, J. in Banshi and Others Vs. State, to embrace not only the trial stage but any stage whether revisional or otherwise of a suit, case or proceeding pending in the Nyaya Panchayat. It was further held in that case that Section 435 Cr. P. C. will not be attracted to an order passed by the Sub-Divisional Magistrate under the U. P. Panchayat Raj Act whether that order be of dismissal of the revision application or of interference with the order passed by the Panchayati Adalat. In the case of Piarey Lal v. State AIR 1955 All 862, Randhir Singh, J. held as below:

"Section 83 expressly makes the provisions of the Cr. P. C. inapplicable to cases or proceedings before the Panchayati Adalat except as provided in the Act itself. It is, therefore, not open to the High court to interfere with the order passed by the Panchayati Adalat u/s 561-A Cr. P. C."

The aforesaid decision was considered by A. N. Mulla, J. in the case of Raja Himanshu Dhar Singh v. B. P. Singh 1962 Cri LJ 57 : (1963 Cri LJ 507) and in the course of judgment he made the following observations:

"The counsel then placed before me a decision of our own High Court in Mihin Lal Jwala Prasad Vs. Marguerite Butter Dairy Farm, , It was held in this decision that Section 561-A cannot be applied to cases under the Panchayat Raj Act. With respect to the learned Judge who gave the decision I am not of the same opinion. The learned Judge came to this conclusion because as observed by him the Cr. P. C. did not apply to the Panchayat Raj Act and as Section 561-A is incorporated in the Cr. P. C. therefore Section 561A became inapplicable. in my opinion, Section 561 is no part of the Cr. P. C. though it is incorporated in it. Section 561A deals with the inherent powers of the High Court and even if these powers had not been mentioned in Section 501A, even then these powers could have been exercised by the High Court. These powers do not come to the High court because Section 561-A is enacted, but because they are the inherent powers of the High Court. The High Court is not only a Court of Law, but a Court of Justice also and in the interests of justice the High Court can interfere to rectify a grave wrong."

The aforesaid reasoning is not without some attraction, but with great respect to the learned Judge, we find ourselves unable to agree with him. Section 561-A of Cr. P. C. is very much in the Code and the fact that it la a part of the Code cannot be Ignored. If the intention of the Legislature had been that the provisions of Section 561-A Cr. P. C. should be applicable to a civil, revenue or criminal case in a Nyaya Panchayat nothing would have been easier for the Legislature than to have said so specifically and to have excepted that section while excluding the application of the Cr. P. C. to a case in a Nyaya Panchayat.

It has already been seen that an order of Nyaya Panchayat is not to be questioned by appeal or revision in any court except as provided in the U. P. Panchayat Raj Act. Under that Act, the High Court has no revisional or appellate jurisdiction over a criminal case tried by a Nyaya Panchayat and the legal position seems to be quite clear that in the exercise of its inherent jurisdiction the High court cannot interfere with an order made by a Nyaya Panchayat or by the Sub-Divisional Magistrate in the exercise of his revisional powers.

On behalf of the petitioner, reliance has been placed on the case of Sarbuland v. Emperor AIR 1941 Lah 5. That case was under the Punjab Village Panchayat Act, No. III of 1922. It was a case u/s 406 I. P. C. and was tried by the Village Panchayat although it had no jurisdiction to try such a case and it was in the aforesaid setting of facts that it was held that the order passed by the Village Panchayat could be revised by the High Court in the exercise of powers conferred by Sections 439 and 561-A of Cr. P. C. and Sections 30 and Sections of the Punjab Village Panchayat Act did not bar the Jurisdiction of me High Court. The material portion of Section 30 of the aforesaid Act reads as below:

"The provisions of the Cr. P. C. 1893 ..... and of the Evidence Act, 1872, shall not apply to proceedings under this Chapter of the Act, save to the extent that may be prescribed; but the Panchayat shall ascertain the facts of every case by an lawful means in its power and thereafter pass such order, decree or sentence as may be in accordance with Justice, equity and good conscience."

The reasoning which appealed to the learned Judges of the Lahore High Court was that the Village Panchayat did not have jurisdiction to try a case u/s 406 of I. P. C., and, as such, the trial of the case was not under Ch. IV of the Act and ex hypothesis the application of the provisions of the Cr. P. C. was not excluded. That decision is, therefore, no authority for the proposition that Section 561-A of Cr. P. C. is applicable to a criminal case which is cognizable and is decided by a Nyaya Panchayat.

The question that arose for consideration in the case of Dr. Raghubir Sharan Vs. The State of Bihar, was as to whether a High Court can, in the exercise of powers conferred by Section 561-A of Cr. P. C. expunge objectionable remarks in Judgment or order of subordinate court against strangers to the us alter the same had become final. No such question arises in the instant case. Moreover, the application of the Cr. P. C. to such a matter has not been excluded by any provision of Jaw. The decision in the aforesaid case is, there-tore, not of much assistance to the petitioners.

Relying upon the majority decision in the Full Bench case, reported in Ram Saran Tewari Vs. Raj Bahadur Varma and Others, it has been contended on behalf of the petitioners that Nyaya Panchayat was a court subordinate to the High Court and, as such, Section 561-A Cr. P. C. would be applicable to a case decided by a Nyaya Panchayat. The argument can, however, be of no assistance to the petitioners in view of the provisions of law contained in Sections 83 and 89 of the U. P. Panchayat Raj Act, 1947.

For the foregoing reasons, our answer to the question of law referred to us is in the negative.