Markandey Singh vs State and Another

H.N. Kapoor, J.—This petition has been filed by Markandey Singh u/s 482 Code of Criminal Procedure praying that the proceedings pending against him in the court of the Sub-Divisional Magistrate, Chunar in case No. 228 of 1973 be quashed. Proceedings had been Started against him on the basis of an application made by Lallan Singh, a newly elected Pradhan before the Sub-divisional Magistrate Chunar at Mirzapur Complaining that Markandey Singh being the old Pradhan had not handed over registers etc of the Gram Sabha while handing over charge to Lallan Singh and as such committed an offence punishable u/s 14-A of the U.P. Panchayat Raj Act. This section was added by Section 6 of the c Act III of 1973. On that application the Sub-divisional Magistrate ordered the Station Officer concerned to register a case and investigate. After investigation, the Station Officer had submitted a charge '' sheet on the basis of which the Sub-divisional Magistrate proceeded.

One of the grounds urged is that the Sub-divisional Magistrate had no jurisdiction to order the Station Officer to register the case and that it amounts to taking cognizance of the case u/s 190(a) Code of Criminal Procedure and that the entire proceedings are vitiated because even the statement of the complainant had not been recorded. In my opinion, cognizance of this case was not taken u/s 190(a) but u/s 190(b) Code of Criminal Procedure. The Sub-divisional Magistrate under his supervisory powers (apart from the powers under the Code of Criminal Procedure) had ordered the Station Officer to register the case and investigate. The application sent to the Station Officer by the Sub-divisional Magistrate was treated to be a first information report. Inspite of this order of the Sub-divisional Magistrate, it was open to the investigating officer to have submitted a final report after investigation. Cognizance of this case, therefore, had been ultimately taken u/s 190(b) of the Code of Criminal Procedure.

Learned Counsel for the Petitioner has also objected to the filing of the counter affidavit in this case by Lallan Singh and not by the Sub-divisional Magistrate himself who was made a party or by any person on behalf of the State. Lallan Singh had not been made a party to the petition. The Assistant Govt. Advocate has made a statement that he adopts the counter affidavit on behalf of the State. In fact, it was at the instance of Lallan Singh that the proceedings started. He was thus a person interested. I see no reason why he had no right to file the counter affidavit. Most of the facts alleged in the affidavit are, in fact, within the personal knowledge of Lallan Singh and none else.

Learned Counsel for the Petitioner has argued that u/s 52(f) of the U.P. Panchayat Raj Act any offence under the Act or the rules framed thereunder is to be tried by the Nyaya Panchayat and as such the offence u/s 14-A of the Act too should have been tried by the Nyaya Panchayat. According to him, it Was a different matter that the Nyaya Panchayat itself might have ultimately transferred the case to the court of the competent jurisdiction u/s 58 in case it felt that adequate punishment could not be awarded.

On the other hand, the Asstt. Govt. Advocate has placed reliance on Section 55(4) Panchayat Raj Act which is as follows:

Notwithstanding anything contained in Section 52 and Sub-sections (1) to (3) of this section but subject always to the provisions of the Code of Criminal Procedure, 1898, where any court has taken cognizance of any offence referred to in the said sections and a summons or warrant, as the case may be, has issued for the appearance of the accused in such case, the offence may be enquired into and tried by such court.

This section was interpreted by a Division Bench of this Court in the ease of Bachchey Ram v. S.D.M. Palli Ranikhet 1972 AWR 34 and it was held that once a case is pending in the court of the Magistrate, the Nyaya Panchayat had no jurisdiction to take cognizance of the same. Learned Counsel for the Petitioner has placed reliance on a Full Bench decision of this Court in the case of Mata Bhikh v. Baijnath 1955 AWR 155. In that case, it was no doubt held that the Nyaya Panchayat only had jurisdiction to try the case. But it is to be noted that it was after the decision in that case that Section 55 had been substituted for the old section by Act No. II of 1955 which was enforced by the notification dated April 27, 1956. The fact remains that the Magistrate has now taken cognizance of the case and it is pending in his Court. The Magistrate was competent to take cognizance of any offence against other laws under Schedule 2 of the old Code of Criminal Procedure which is applicable to the facts of the present case as the investigation had started prior to the coming into force of the New Code of Criminal Procedure vide Matabar Parida, Bisnu Charan Parida, Batakrushna Parida and Babaji Parida Vs. The State of Orissa, .

Lastly, learned Counsel for the Petitioner has also argued that the trial of the Petitioner before the Magistrate u/s 14-A Panchayat Raj Act is violative of Article 14 of the Constitution. In proceedings u/s 482 Code of Criminal Procedure this Court has only to pass an order to give effect to any order under the Code of Criminal Procedure or to prevent the abuse of the process of any court or otherwise to secure ends of the justice. There is another provision u/s 395 Code of Criminal Procedure (New) for making a reference to the High Court in case any Act, Ordinance, regulation or provision is sought to be challenged. Vires of the Act or a particular section may be challenged even in the writ jurisdiction. Prima facie, there does not appear to be any such illegality in the trial which may justify interference u/s 482 Code of Criminal Procedure. I have also not examined the effect of Article 14 of the Constitution having been suspended by the promulgation of the Presidential Order under Article 359 of the Constitution.

There is no force in this petition. It is accordingly dismissed. The stay order is vacated.