Hari Devi vs Bhagat Singh and Another

A.L. Vaidya, J.—The present petition has been preferred under Article 227 of the Constitution of India read with Section 482 Code of Criminal Procedure with the prayer that the order passed by the Chief Judicial Magistrate, Solan dated 10th august, 1994 in case No. 78/4 of 1993 may be set-aside and the case be remanded back for decision by the Chief Judicial Magistrate on merit.

The facts giving rise to the present proceedings were that Smt. Hira Devi, the present Petitioner preferred a petition u/s 125 of the Code of Criminal Procedure against her husband Sh. Bhagat Singh. During the proceedings of the petition, u/s 125 Code of Criminal Procedure, the learned Chief Judicial Magistrate, Solan on 10th August, 1994 passed the following order:

10.8.94 Present: Petitioner in person with counsel Shri R.S. Panwar, Advocate.

Shri Ram Rattan, Advocate, for Respondent.

I have heard the learned Counsel for the parties on the application moved on behalf of the Respondent for transfer of this case to Gram Panchayat, Rouri u/s 32 of the Himachal Pradesh Panchayati Raj Act (Act No. 4 of 1994). The application has been opposed by the ld. counsel for Petitioner. I have gone through the record. The said Act and according to provisions of Section 32(2) of the said Act, an application for maintenance u/s 125 Code of Criminal Procedure is now to be heard and decided by a Gram Panchayat which have been empowered the Panchayat a maintenance allowance not exceeding Rs. 500/- per month. In view of the change in the law, this application pending before this Court cannot be proceeded with and these proceedings have to be transferred to a Gram Panchayat as it is admitted case of the parties that the parties are residence of the areas outside the Municipal Limits and therefore, u/s 35 of the said Act, these proceedings have got to be transferred to a Gram Panchayat. The Respondent applicant has prayed that these proceedings be transferred to Gram Panchayat, Rouri. In these circumstances, this case is hereby transferred to Gram Panchayat, Rouri for disposal in accordance with law. The parties are directed to appear before the said Panchayat, on 3.9.1994 at 11 A.M. and in the meantime this file be completed in all respects be sent to the Pradhan, Gram Panchayat, Rouri, Tehsil Kasauli, District Solan forthwith.

Announced. Sd/- 10.8.1994 (R.C. Sharma) Chief Judicial Magistrate, Solan, Distt. Solan, H.P. 3. The aforesaid order has been assailed in the present petition on various grounds and it has been submitted that the order passed by the learned Chief Judicial Magistrate was illegal, violating the provisions of the Constitution, and, therefore, required to be interfered with.

On the other hand, it has been contended on behalf of the Respondents that on the basis of the provisions of the Himachal Pradesh Panchayati Raj act, (hereinafter to be referred as ''the Act'') the order under reference was not only valid, but, otherwise, legally maintainable.

The submissions putforth by the learned Counsel for the Petitioner Sh. G.D. Verma, Advocate, can be summarised as under:

(i) under the provisions of the Act, the learned Magistrate had no power to transfer this case to the concerned Panchayat, as no such provision was there under the Act to transfer the pending cases;

(ii) In case the aforesaid plea is not favourably accepted, the provisions of Section 125 of the Code of Criminal Procedure read with Section 32(2) of the Act, in case taken together would only mean that the option lies with the Petitioner to file a petition u/s 125 Code of Criminal Procedure either before the Judicial Magistrate or before the concerned Gram Panchayat;

(iii)In case the aforesaid plea was also not favourably considered, Section 32(2) of the Act being inconsistent and repugnant to the provisions of Section 125 Code of Criminal Procedure and under Article 254(2) of the Constitution of India, assent of the President of India, was essential before making the aforesaid provisions applicable in the Act, and as the assent of the President of India has not been taken, therefore, Section 32(2) of the Act has to be struck down being ultra-vires to the provisions of the Constitution of India.

In order to appreciate the aforesaid pleas submitted by the learned Counsel for the Petitioner, the relevant provisions of law and Constitution have to be taken note of, which for the sake of convenience are being reproduced hereunder.

Section 32 of the Act runs as under:

32(1) Offences mentioned in Schedule-Ill pr declared by the State Government to be cognizable by a Gram Panchayat, if committed within the jurisdiction of a Gram Panchayat, and abetment of and attempts to commit such offences shall be cognizable by such Gram Panchayat.

(2) Application for maintenance u/s 125 of the Code of Criminal Procedure, 1973, shall be heard and decided by the Gram Panchayat. A Gram Panchayat may grant a maintenance allowance not exceeding five hundred rupees per month on such application without prejudice to any other law for the time being in force in this behalf.

Section 35 of the Act runs as under:

If, at any stage of the proceedings in a criminal case pending before a Magistrate, it appears that the case is triable by a Gram Panchayat, he shall at once transfer the case to that Gram Panchayat which shall try the case de-novo.

Article 40 of the Constitution of India runs as under:

Organisation of village Panchayats:

The State shall take steps to organise village panchayats and endow them with such powers and authority as may be necessary to enable them to function as units of self-government.

Article 254 of the Constitution of India runs as under:

Inconsistency between laws made by Parliament and laws made by the Legislatures of States:

(1) If any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of Clause (2), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void.

(2) Where a law made by the Legislature of a State with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State;

Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State.

u/s 32(2) of the Act, it has been very specifically provided that an application u/s 125 Code of Criminal Procedure shall be heard and decided by the Gram Panchayat, and Gram Panchayat may grant a maintenance allowance not exceeding five hundred rupees per month, and that too, without prejudice to any other law for the time being in force in this behalf.

Section 125 Code of Criminal Procedure also empowers the Judicial Magistrate to grant a maintenance allowance not exceeding five hundred rupees.

At first instance, it has been contended that Section 35 of the Act does not include the pending proceedings u/s 125 Code of Criminal Procedure before any Magistrate to be the subject matter of the transfer under the aforesaid provision. In this behalf, it has been contended that the words "proceedings in criminal cases" pending before a Magistrate, u/s 35 of the Act, will not include the proceedings u/s 125 of the Code of Criminal Procedure, inasmuch as, such a proceeding has not been specifically mentioned u/s 35 of the Act, and, therefore, Section 35 would not be applicable to the proceedings of present nature. It has further been contended that the "proceedings in a criminal case" referred 1n this Section only meant with respect to the proceedings pertaining to the offences referred u/s 32(1) of the Act. I think, the interpretation being so given by the learned Counsel for the Petitioner, will not be available in the context of the present case.

The word "proceedings in criminal case" pending before a Magistrate appearing in Section 35 of the Act, will cover, not only the cases u/s 32(1) of the Act, but also application for maintenance u/s 125 of the Code of Criminal Procedure, as referred In Section 32(2) of the Act.

Needless to say, the proceedings u/s 125 Code of Criminal Procedure are the proceedings to be Instituted before a Judicial Magistrate and the procedure to be adopted in such applications is the procedure, as envisaged u/s 126 of the Code of Criminal Procedure. Section 126(2) of the Code of Criminal Procedure provides that all evidence in such proceedings shall be taken in the presence of the person against whom an order for payment of maintenance is proposed to be made, or, when his personal attendance is dispensed with in the presence of his pleader, and shall be recorded in the manner prescribed for summons-cases. That means, in so far as the evidence is to be recorded in such proceedings, it has to be so done as provided for summons cases. The learned Counsel for Petitioner''s submissions that such proceedings cannot be said to be the proceedings of a criminal case, inasmuch as, Section 125 of the Code of Criminal Procedure provides only the grant of maintenance and no punishment is required to be inflicted, as is required to be done when some offence is established against the accused.

The words "proceedings in a criminal'' case" pending before a Judicial Magistrate, as used in Section 35 of the Act will not limit such proceedings being taken in a case, whereby opposite party is accused of committing an offence, but the words used in this Section that the "proceedings in a criminal case" would mean in the larger sense of the proceedings, which are covered by the Code of Criminal Procedure. The word "criminal case" will not include the proceedings after the commission of an offence, but will include the proceedings taken in hand as a preventive measure, as provided under Sections 145 and 133 of Code of Criminal Procedure, etc. alongwith proceedings u/s 125 Code of Criminal Procedure also. "Criminal Case" as such, would mean, any case the proceedings of which are controlled by the provisions of Code of Criminal Procedure, and such proceedings in a case which are pending before a Magistrate. In this background, the proceedings u/s 125 Code of Criminal Procedure pending before a Magistrate will come within the ambit of} Section 35 of the Act.

Otherwise also, the intention of the legislature by providing Section 35 of the Act can easily be inferred. In case, the intention of the legislature was to cover only those cases, which have been provided u/s 32(1) of the Act, it could have been so specifically provided in Section 35 of the Act in that manner. But this has not been so done, which only means that all the criminal cases coming within the ambit of Section 32 of the Act shall be covered u/s 35 of the Act. Otherwise also, it does not appeal to reasoning at all that Section 35 of the Act included the criminal cases mentioned u/s 32(1) alone and excluded the applications u/s 125 of the Code of Criminal Procedure referred in Section 32(2) of the Act. The purpose of Section 35 of the Act is that all the pending criminal cases before a Magistrate, which are triable by the Gram Panchayat shall at once be transferred to that Gram Panchayat, which shall try the cases de-novo. That means, Gram Panchayat shall have the jurisdiction to decide those criminal cases also which were pending before the Judicial Magistrate. It would be not in the said intention of Section 35 of the Act that only a part of cases are to be transferred to the Gram Panchayat covered u/s 32(1) of the Act, but not under Sub-section (2) of the said Section. In order to give the harmonious interpretation to the provisions of Section 35 of the Act, it would include all the cases referred in Section 32 of the Act including Sub-section (1) and (2) of the Act. Thus, the order passed by the learned Chief Judicial Magistrate, Solan in this view of the matter, does not suffer from any infirmity.

The second line of argument advanced on behalf of the Petitioner has been that in view of the provisions u/s 125 of the Code of Criminal Procedure read with Section 32 of the Act, the option for filing the application u/s 125 Code of Criminal Procedure was that of the Petitioner and the Petitioner could select the forum to file the petition of a present nature, moreso, in a pending proceedings, it has to continue in case the Petitioner opts for its continuance. I think, such a plea would not be legally available to the Petitioner, in view of the specific provision of Section 35 of the Act, which has been discussed in detail above; whereby a pending case of the present nature comes within the provisions of Section 35 of the Act and the Magistrate has no option but to transfer the same to the concerned Gram Panchayat, which shall try that case de-novo. This argument also does not carry any weight whatsoever.

Lastly, it has been contended that u/s 125 of the Code of Criminal Procedure, the judicial Magistrate of the area has got jurisdiction to try the petition for maintenance preferred under the provisions, and u/s 32(2) of the Act, the jurisdiction of the Magistrate has been taken away by this provision and this jurisdiction has been vested in the concerned Gram Panchayat. It has further been submitted that by taking away the jurisdiction of the Magistrate, as provided u/s 125 of the Code of Criminal Procedure and vesting the same in the Gram Panchayat would amount that this provision of Section 32 of the Act is repugnant to the provisions of the Code of Criminal Procedure made by the Parliament and as in the present case, the assent of the President has not been taken, therefore, the aforesaid provision, of Section 32(2) of the Act was violative of Article 254 of the Constitution of India, therefore, in that background, the order under reference could not have been passed.

In order to appreciate the aforesaid arguments advanced on behalf of the Petitioner, various aspects of the matter have to be considered and appreciated before any finding to that effect could be given.

It has been contended on behalf of Respondent No. 1 and on behalf of the State that the aforesaid submissions putforth on behalf of the Petitioner assailing the constitutional validity of Section 32 of the Act, will not come within the right available to the Petitioner under Article 227 of the Constitution of India and u/s 482 of the Code of Criminal Procedure. Strictly speaking, the aforesaid contention has some force in it, but however, in the present case, as is going to be dealt with hereunder, the submission putforth on behalf of the Petitioner has to be legally Ignored.

The word "Repugnancy" has been defined in Venkataramaiya''s Law Lexicon with Legal Maxims, (at page 2077-78), as under:

Repugnancy: The word "repugnancy" connotes the idea of incompatibility, that is to say, when both cannot logically exist at the same time. As was Observed by Higgins, J., in AIR 1939 74 (Federal Court) .

When is a law "inconsistent" with another law? Etymologically, I presume that things are inconsistent when they cannot stand together at the same time; and one law is inconsistent with another law when the command or power or other provision is one law conflicts directly with the command or power or provision in the other" - M.P. State Road Transport Corporation v. Ramchandra 1977 Jab. L.J. 292 at pp. 301-2 see also Managing Director, Indian Oil Corporation. Ltd. v. C.D. Singh (1972) 5 Pat. L.J.R. 124 at P.133.

Repugnancy implies a conflict between two provisions, neither of which can be given effect to without infringing the other. When obviously there is no conflict, it would be far-fetched to postulate a Government of Andhra Pradesh and Others Vs. Durga Suryanarayna, .

Similarly, the work "Repugnant" has been defined as under:

Repugnant - "Repugnant" really means "inconsistent with". Things are inconsistent when they cannot stand together at the same time, and one law is inconsistent with another law when the command or power or provision in the one law conflicts directly with the command....

In the present case, there cannot be any repugnancy in the aforesaid context between Section 125 Code of Criminal Procedure and Section 32 of the Act. In case, both the provisions are taken note of, there would''nt be any conflict between the two. But on the other hand, both the provisions shall prevail in the background of the facts involved in a particular case.

Needless to say, u/s 32(2) of the Act, an application for maintenance u/s 125 of the Code of Criminal Procedure shall be instituted before a Gram Panchayat having jurisdiction to decide the same. On the other hand, in the urban area where the Act is not applicable, the jurisdiction of the Magistrate would remain there to decide and hear the applications u/s 125 of the Code of Criminal Procedure. The aforesaid provisions in the Act has been provided in order to ensure effective involvement of the Panchayati Raj Institutions in the local administration and developmental activities. The local administration includes the administration of justice also, which has been so provided under Article 40 of the Constitution of India, as referred earlier. Thus, the test on repugnancy is that it should not be possible for both the laws to stand together, and that obedience to one should necessitate the contravention of the other. If both the laws can be obeyed at the same time, there is no repugnancy, as explained earlier. Such a situation will not arise in the present case.

Otherwise, there ought to be presumption in favour of the laws'' validity and every effort has to be made to reconcile them and continue both, so as to avoid their repugnance to each other and care should be taken to see whether the two do not operate any different field without encroachment.

It has further been contended on behalf of the Petitioner that the repugnancy between the two provisions could be inferred inasmuch as different forums have been provided for the judicial scrutiny of the order passed by the Magistrate u/s 125 of the Code of Criminal Procedure and by the concerned Gram Panchayat u/s 32 of the Act. There is no doubt, that different forums have been provided to scrutinise judicially the order . passed - by two forums, but the fact remains that judicial scrutiny is provided for assailing the orders passed by the two courts. There is nothing in the Act itself that the order passed by the Gram Panchayat would be final. An order passed u/s 125 of the Code of Criminal Procedure is a revisable order and otherwise, the High Court could intervene u/s 482 of the Code of Criminal Procedure and under Article 227 of the Constitution of India. Similarly, an order passed by the Gram Panchayat in a petition preferred u/s 125 Code of Criminal Procedure can be assailed by preferring an appeal, before the Judicial Magistrate u/s 67 of the Act, and, thereafter, in case, the parties so aggreived, can approach the High Court under Article 227 of the Constitution of India. Thus, it cannot be said that in so far as judicial scrutiny of the order passed by the two forums is concerned, the parties are being discriminated. But on the other hand, the petition preferred before the Gram Panchayat is a class in itself. Thus, it cannot be said that on the ground of judicial scrutiny, the provisions of Section 32(2) of the Act can be said to be void one.

The learned Counsel for the Petitioner has tried to take some advantage from the case law decided by various courts. Gauri Shankar Gaur and Others, etc. Vs. State of U.P. and Others, titled S. Satyapal Reddy and Others Vs. Govt. of A.P. and Others, titled: Sushilabai Laxminarayan Mudliyar and others Vs. Nihalchand Waghajibhai Shah and others, titled: Sushilabai Laxminarayan Mudiyar and Ors. v. Nihalchand Waghajibhai Shaha and Ors. AIR 1991 Mad 246 titled: Accountant and Secretarial Services Pvt. Ltd. and Another Vs. Union of India (UOI) and Others, titled: Accountant & Secretarial Services Pvt. Ltd. and Anr. v. Union of India and Ors., have been cited in support of the submissions putforth on behalf of the Petitioner.

I think, the ratio of the aforesaid decided case law will not at all be applicable to the facts of the present case and in a way will not be helpful for the Petitioner to draw any legitimate support from the aforesaid decided cases.

In Gauri Shankar Gaur and Ors. v. State of U.P. and others case (supra), it has been held that court should endeavour to interpret the statutes in such a way as to retain operation of both the Acts, and in this behalf, pith and substance rule is to be applied for. It has also been held that court should give effect to the legislative intent by a harmonious construction so that no provision of the statute is rendered surplus or otherwise. Their Lordships in this very case, observed that beneficial provision added for general betterment in social interest, in that case, court should adopt a constructive approach so as not to exclude such provision. In the present case, Section 32(2) of the Act has been provided in order to fulfil the requirement of Constitution so that the Gram Panchayats'' are vested with such judicial powers so as to deliver justice at the door of the aggreived party.

The other cases cited also do not help to support the plea raised by the Petitioner assailing the provisions referred in the Act to be violative of Article 254 of the Constitution.

Thus, on the basis of the aforesaid discussion, the points stressed for declaring Section 32 of the Act, to be void, does not hold good, especially when, there does not appear to be repugnancy between Section 125 Code of Criminal Procedure and Section 32(2) of the Act, especially when, as elaborated above, both the provisions can legally continue to prevail upon and the harmonious interpretation does not result in the clash of the two provisions.

No other point has been stressed.

In view of the foregoing reasons, the present petition fails and is accordingly dismissed. The order passed by the Chief Judicial Magistrate, Solan dated 10th August, 1994, as referred to earlier, is, however, maintained.

Cr. M.P. No. 236 of 1994:

In view of the order passed in the main petition, this petition does not survive and is accordingly dismissed.