Mangala Raj vs State of U.P.

Palok Basu, J.—In this petition u/s 482 Code of Criminal Procedure filed by Mangala Raj, he challenges the proceedings by way of complaint u/s 14-A of the U.P. Panchyat Raj Act (here in after to be called as the Act) instituted at the instance of Sub-Divisional Magistrate Chandauli, Varanasi, in the Court of Chief Judicial Magistrate, Varanasi.

The facts lie in a narrow compass. The Petitioner Mangala Raj was a sitting pradhan till 1988 when he was noted out and Ramesh Rai was elected as the Pradhan of the Village/Gaon Sabha P(sic)pri Block Harahani, District Varanasi The allegations in the complaint are that the complainant Mangala Raj was not handing over the charge of the office of pradhan in as much as several papers were detained by him wrongly and inspire of demand by the Magistrate i.e. the prescribed Authority under the Act, he did not comply with it. It was stated in the complaint that such action of Mangala Raj amounts to an offence u/s 14-A of the Act. It may be remembered that such an offence u/s 14-A of the Act is punishable with three year''s R.I. or with a line or with both. The said section says that if any person on ceasing to act as pradhan wilfully fails in spite of being required to do so by the prescribed Authority, to hand over all records, money or other property of Gaon Sabha to his successor, he shall be punished with imprisonment which may extend to three years or fine or with both.

To complete the chronology relating to the filing of the complaint, it may be stated that the C.J.M. passed the following order on 22-2-1989 (vide Annexure 4 to the petition):

S.O. Dhina, register and investigate. Copy of order forwarded to the S.O. Dhina, Varanasi for compliance.

Sd. (C.J.M) Varanasi. 22-2-1989

It appears that in pursuance of the registration of the said case at the Police Station, investigation began and steps to secure the presence of the applicant had been taken as he has stated that he is apprehending arrest at the behest of the said Police Station. An application has been moved in this Court by Ramesh Rai for being impleaded as an opposite party. He has also filed a detailed counter affidavit. A counter affidavit has also been filed by the state. Rejoinder affidavits have also been filed.

Sri Vinod Prasad, learned Counsel for the applicant has been heard at length in support of this petition while Sri Ram Niwas Singh has argued the matter on behalf of Ramesh Rai and Sri Surendra Singh, learned A.G.A. has supported the arguments advanced on behalf of Ramesh Rai.

In the interest of justice it appears just and proper to allow the impleadment of Ramesh Rai in this application u/s 482 Code of Criminal Procedure as opposite party No. 2.

Two arguments have been advanced by Sri Vinod Prasad challenging the filing of the complaint and the proceedings consequent there under. Firstly, the S.D.M. had no jurisdiction to file the complaint before the court of C.J.M. and such a complaint Could be taken cognizance of by a Niyaya panchayat constituted under the Act. Secondly, since the registration of the case at the police station in pursuance of the orders of the C.J.M. was wrong the attempt to arrest the applicant Mangala Raj is illegal and should be quashed. The learned Counsel for the opposite parties have refuted both these arguments. Reliance has been placed on Section 52 of the Act by Sri Vinod Prasad, He argues that Clause (f) of Sub-section 1 of Section 52 made it incumbent upon the complainant, who so ever he may be, to prefer a complaint only before a Niyaya Panchyat. There can be no quarrel with this proposition but only to the extent to which Clauses (a) and (f) would be attracted It may be remembered that the trial of cases u/s 52 would be dependent on the existence of circumstances envisaged by Section 55 of the Act. The bar of any other court taking covenlzance is applicable only when a Niyaya Panchyat has been established in an area. Sub-section (2) of Section 55 of the Act says that;

If, for any reason, a Niyaya Panchyat ceases to function, all cases pending before it shall stand transferred to the court of competent jurisdiction.

Sub-section (4) of Section 55 appears to be more important in this connection. It lays down that;

Not with standing anything contained in Section 52 and Sub-sections (1) to (3) of Section 55, but subject always to the provisions of Code of Criminal Procedure where any court has taken cognizance of any offence referred to in the said section and summons or warrant, as the case may be, has been issued for appearance of the accused, the offence may be enquired into and tried by such court.

This analysis of Section 55 while opens one argument for Mr. Vinod Prasad, it closes the other. He tried to take shelter behind Sub-section (1) and Sub-section (A) of the Act. He could not substantiate the applicability of Sub-section (2) of the Act The averments relating to the existence of a Niyaya Panchyat in the area has been made in paragraphs 16 and 17 of the affidavit filed in support of this application u/s 482 Code of Criminal Procedure. In the rejoinder affidavit a certificate by some one allegedly working as Block Pramukh. has been filed showing that as if the Niyaya Panchyat is working In the counter affidavits it has been specifically denied that the Niyaya Panchayat was working at the relevant time. In this connection Sri Ram Niwas has drawn the attention of the Court to Sub-section 49 of the Act which lays down as to bow and when a matter may be heard by a Bench of a Niyaya Panchyat It lays down that a Bench shall be always of five panches for any case coming up for disposal before it He also referred to Section 45 of the act which says that the term of every panch of Niyaya Panchyat shall commence on the date of his appointment as such and unless otherwise determined under the provisions of this Act, shall expire with the Gaon Panchyat from which he was appointed, it follows, therefore, that when the elections to the Gaon Sabha are called the Panches cease to exist. A feeble argument though placed emphatically, must be met here. Sri Vinod Prasad argued that since the filing of complaint as per Section 51 of the Act is always to be done before a Sarpanch, therefore. Niyaya Panchyat should be interpreted to be continuing for purposes of taking cognizance of a criminal complaint, notwith standing the provisions contained in Sections 45 and 49 of the Act. This argument is fallacious Section 51 of the Act only lays down the manner of institution of a case which is triable by a Niyaya Panchyat If the trial is possible by the Niyaya Panchyat, the institution has to be done before the Sarpanch. That alone appears to be the tenor of the provisions contained in Section 51 of the Act. Therefore, if in a given situation the Niyaya Panchyat is not in existence, it will be dangerous to lay down that the complaint should be filed before the Sarpanch even though its trial cannot proceed. This argument of Sri Vinod Prasad has, therefore, to be rejected.

The only other point to be decided is as to whether it is open to the police to try to arrest the applicant, if necessary, in order to procure his attendance. It goes without saying that since the filing of complaint in the court of C J.M. was proper, his action in conducting an enquiry by the police is fully protected by Section 202 Code of Criminal Procedure and if an enquiry after the registration of the case is made by the police, arresting of a suspected accused is only a part of that investigation which should not be thwarted under any circumstance.

No other point survives for decision.

This petition is consequently dismissed The interim order dated 17-3-1989 is vacated.