Goverdhan Dass vs Smt. Bhaomatu and Another

Chet Ram Thakur, J.—This petition under Article 227 of the Constitution was filed by Goverdhan Dass on 19th December, 1972. By this petition he had prayed for quashing the proceedings before the Sub-Divisional Magistrate, Rampur, i.e., Respondent No. 2, initiated by Smt. Bhagmatu u/s 488 of the Code of Criminal Procedure for maintenance against the Petitioner.

The Petitioner had questioned the jurisdiction of the Magistrate by this petition and according to him u/s 203(2) of the Himachal Pradesh Panchayati Raj Act, 1968 (hereinafter called the Act) the powers to hear and decide applications u/s 488 of the Code of Criminal Procedure have been given only to a Nyaya Panchayat. The jurisdiction of the other Courts have been completely barred. As such the Respondent No. 2 has no inherent jurisdiction to the cognizance of the proceedings and the proceedings are, accordingly, without jurisdiction and liable to be quashed.

At the time of the admission when the learned Counsel for the Petitioner was asked whether he had taken up this objection before the Court, i. e., the Respondent No. 2, it was told that he had not taken up this objection, therefore, the Court vide its order, dated December 26, 1972, ordered that the ground on which the miscellaneous petition No. Cr. M. P. (M) 33 of 1972 was brought could be taken by way of an objection before the Magistrate concerned and that it was desirable that the objection should first be raised before the Magistrate and his decision taken thereon and the petition in this Court was kept pending. It appears that the [Petitioner did take up this objection before the Magistrate, who, vide] his order, dated 30th January, 1973, held that the Magistrate and the Nyaya Panchayats have concurrent, jurisdiction to entertain applications u/s 488 of the Code of Criminal Procedure. Thereafter the Petitioner moved another application Cr. M. P. 8 of 1973 in the Cr. M. P. (M) 33 of 1972 for admission and also filed another application Cr. M. P. 16 of 1973 in Cr. M.P.(M). 33 of the 1972 with the same prayer as was made in the earlier application. The Petitioner has also submitted that during the pendency of the petition in this Court the Respondent No. 2 had decided the case finally and, therefore, by this petition No. Cr. M.P. 16 of 1973 he has also prayed for quashing that order, dated 26th February, 1973, whereby he had fixed Rs. 75/- per month as maintenance to Respondent No. 1 and their two minor children.

This petition has been opposed by the Respondent No. 1. According to the Respondent, the Sub-Divisional Magistrate and the Panchayat have got concurrent jurisdiction as, firstly, the jurisdiction of the Magistrate is above Rs. 100/-, and in the present case the amount is Rs. 200/-, secondly, the application for maintenance is not barred by any of the provisions of the Act.

This case came up for hearing before D.B. Lal J., who referred the same to a larger Bench on the ground that there were two conflicting judgments of this Court, one in Shri Bhagwant v. Smt. Shyam Devi ILR 1972 H. P. 245, decided by me and the other in Shri Padam Singh v. Smt. Kanta, reported in ILR H. P 1973 993, decided by Tripathi, J. This is how the ''case came up before this Bench.

We have heard the learned Counsel for the parties. In Shri Bhagwant''s case (Supra) the proceedings for maintenance were pending before the Nyaya Panchayat, and, the Sub-Divisional Judge on an application made by Smt. Shyam Devi withdrew the same and in that case I observed that Section 526 of the Code of Criminal Procedure, under which the application was made, and the Sub-Divisional Judge withdrew the proceedings from the Nyaya Panchayat to his own file, has got no applicability to the transfer of the cases from [the Nyaya Panchayat by the District Magistrate] or the Sub-Divisional Judge. Under Para 6 of the judgment I had observed as:-

The learned Sub-Divisional Judge while accepting the application has observed that the counsel of the parties agreed that proceedings may be transferred from the Nyaya Panchayat to the Court. It was on that agreement of the parties also that the learned Sub-Divisional Judge thought that he could withdraw the case from the Nyaya Panchayat. But it may be observed that the consent of the parties cannot confer any jurisdiction on the Court. Since the withdrawal or transfer of the case was illegal, therefore, the District Magistrate also could not take cognizance of the case which was exclusively triable by the Nyaya Panchayat and this withdrawal and transfer of the case from the file of the Nyaya Panchayat was wholly unwarranted.

So it is on this particular observation made by me in this paragraph that since the withdrawal or transfer of the case was illegal, therefore, the District Magistrate could not take cognizance of the case which was exclusively triable by the Nyaya Panchayat. Upon which the learned Counsel for the Petitioner had placed reliance. In this case it was not directly a question whether the jurisdiction u/s 488 of the Code of Criminal procedure is exclusively that of the Nyaya Panchayat or the jurisdiction was concurrent.

In Shri Padam Singh''s case (supra) the point raised -was that the Magistrate had no jurisdiction to entertain the application u/s 488 of the Code of Criminal Procedure as the exclusive jurisdiction for the same has been vested in the Nyaya Panchayat u/s 203(2) of the Act.

In the instant case before us Smt. Bhagmatu had filed an application for maintenance allowance of Rs. 200/- per month before the Sub-Divisional Magistrate, Rampur. The learned Counsel for the Petitioner submits that the Magistrate has no jurisdiction to take cognizance of the case as the case was exclusively triable by the Nyaya Panchayat. Section 203 of the Act reads as:-

(1) Offences mentioned in Schedule II or declared by the State Government to be cognizable by a Nyaya Panchayat, if committed within the jurisdiction of a Nyaya Panchayat, and abetment of and attempts to commit such offences shall be cognizable by such Nyaya Panchayat.

(2) Application for maintenance u/s 488 of the Code of Criminal Procedure shall be heard and decided by the Nyaya Panchayat. A Nyaya Panchayat may grant a maintenance allowance not exceeding one hundred rupees per month on such application without prejudice to any other law for the time being in force in this behalf.

From the reading of Sub-section (2) of this section it would follow that application for maintenance u/s 488 of [the Code of Criminal Procedure shall be heard and decided by the Nyaya Panchyat. Further the Nyaya Panchayat may grant a maintenance allowance not exceeding one hundred rupees per month on such application] without prejudice to any other law for the time being in force in this behalf. Therefore, what follows from this section is that a Nyaya Panchayat shall hear and decide the cases with respect to maintenance, but the Nyaya Panchayat is precluded from granting a maintenance allowance exceeding one hundred rupees. Therefore, the necessary corellaryis that if any maintenance in excess of Rs. 100/-is claimed then the party shall have to approach the Magistrate because the Nyaya Panchayat has no power to grant the maintenance exceeding one hundred rupees per month. ''Further it is apparent from the reading of this Sub-section that if there is any other law which provides for grant of maintenance then the jurisdiction of that Court is also not barred because it says that a Nyaya Panchayat may grant a maintenance allowance not exceeding one hundred rupees on such application without prejudice to any other law for the time being in force in this behalf (emphasis mine). u/s 488 of the Code of Criminal Procedure |a Magistrate First Class or a District Magistrate has also been given the jurisdiction to grant maintenance allowance. Therefore , it would follow that the Magistrate and the Nyaya Panchayat are both competent to entertain and take cognizance of an application for grant of maintenance u/s 488 of the Code of Criminal Procedure. However, where the maintenance is claimed below one hundred rupees then necessarily the case may go to the Nyaya Panchayat. But that does not mean that a Magistrate of a First Class is precluded from entertaining any such application even for maintenance below one hundred rupees.

According to the learned Counsel for the Petitioner the application for maintenance irrespective of any amount must be filed before the Nyaya Panchayat because it is exclusively the Nyaya Panchayat which is empowered to take congnizance, and when the Nyaya Panchayat finds that the applicant is entitled to maintenance allowance exceeding one hundred rupees, only then in that case it shall direct the-applicant to approach the other Court or the Nyaya Panchayat shall grant a monthly allowance of one hundred rupees, and in case the applicant feels that she was entitled to allowance exceeding one hundred rupees thereafter for the enhancement she must approach the Court of the Magistrate. But this argument sounds highly incongruous and inconsistent. In my opinion, it is the amount of maintenance claimed which will determine the forum.

u/s 206, it is undoubtedly the Nyaya Panchayat which has got the jurisdiction to take cognizance of a criminal case or a civil case which is triable by the Nyaya Panchayat. But as has been held by me as also by Tripathi, J., in Shri Bhagwant v. Smt. Shyam Devi and Shri Padam Singh v. Smt. Kanta respectively, the proceedings u/s 488 of the Code of Criminal Procedure do not either fall within the preview of a criminal case or a civil suit. Section 488 of the Code of Criminal Procedure vests jurisdiction in the Magistrate for entertaining and disposing of an application for maintenance as already stated above and Section 203(2) also gives a concurrent jurisdiction for grant of maintenance u/s 488 of the Code of Criminal Procedure to the Magistrate as also to the Nyaya Panchayat where the allowance does not exceed one hundred rupees per month. Therefore, in my opinion, in so far as the two authorities are concerned, there does not appear to be any conflict, because in Shri Bhagwant''s case (supra) there was only the question of transfer u/s 526 of the Code of Criminal Procedure wherein a casual remark was made and moreover in that case the amount claimed did not exceed one hundred rupees and in the later case decided by Tripathi, J., there is nothing as to what was the amount claimed. However, it is quite apparent that the point was directly involved in that case whether the Nyaya Panchayat has got the exclusive jurisdiction to entertain and dispose of an application u/s 488 of the Code of Criminal Procedure and, he, therefore, held that the Nyaya Panchayat as also the Magistrate have got concurrent jurisdiction where the amount of maintenance does not exceed one hundred rupees. But in so far as the claim exceeding one hundred rupees is concerned, I am of the view, as in the present case, the Magistrate had the jurisdiction because it is the amount which determined the forum.

I am of the view that the Magistrate has rightly taken cognizance of the case and this petition is, therefore, dismissed as being without substance.

D.B. Lal, J:

I agree.