Shri Padam Singh vs Smt. Kanta

H.C.P. Tripathi, J.—By this petition under Article 227 of the Constitution read with Section 435 and 561(a) of the Code of Criminal Procedure the Petitioner challenges the validity of the order of the learned Sessions Judge, Simla dated 24th March, 1973 upholding the order of the Sub-Divisional Magistrate Rampur in a proceeding u/s 488 of the Code of Criminal Procedure.

I have heard learned Counsel for the parties and have read the affidavits and counter affidavits filed by them. In my opinion this petition is wholly misconcieved and must be dismissed.

Article 227 of the Constitution vests power of Superintendence in the High Court over all Courts and Tribunals exercising jurisdiction. This does not mean that in its exercise of power of superintendence the High Court can correct the jurisdictional errors committed by the subordinate Courts. That can be done only by way of appeal or revision or under Article 226 of the Constitution.

The only point raised in support of this petition is that the Magistrate had no jurisdiction to entertain an 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 Sub-section (2) of the Himachal Pradesh Panchayati Raj Act, 1968. Learned Counsel appearing for the Petitioner, in support of this contention, placed reliance on a single Judge decision of this High Court reported in April issue of Indian Law Reports, Himachal Pradesh scries in the case of Bhagwant Versus Shayam Devi at page 245. In Bhagwant''s case the learned single Judge was considering whether the transfer of proceedings from Nyaya Panchayat to his own file by the Sub-Divisional Judge was competent or not. In that connection he has made certain observations which are in my opinion in the nature of obiter.

Section 3 Sub-section (dd) reads "suit means a revenue or civil suit triable by a Nyaya Panchayat". Sub-section (hh) provides that ''offence'' will have the same meaning as is provided in Section 4 of the Code of Criminal Procedure. In the light of these definitions it is necessary to read Section 203 of the Act which is as follows:

(1) Offences mentioned in Schedule II or declared by the State Government to be cognizable by 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 inforce in this behalf.

Section 206 provides that no court shall take cognizance of any case or suit which is cognizable under this Act by a Nyaya Panchayat established for the area to which the suit relates unless an order has been passed u/s 238 of the Act. A reading of Sections 203 and 206 together with the definition of suit and offences as given in this Act makes it evident that the jurisdiction of the Court is banned to take cognizance only when it is a criminal case or a civil suit triable by the Panchayat. It is well settled that an application claiming maintenance u/s 488 of the Code of Criminal Procedure is neither a criminal case nor 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 by the wife. The Himachal Pradesh Act gives a concurrent jurisdiction for the disposing of such an application and granting a maintenance allowance not exceeding one hundred rupees per month to the Nyaya Panchayat. As it is not a case, such an application is neither a criminal case nor a civil suit. Section 206 does not bar the jurisdiction of the Magistrate to entertain and dispose of such an application. In fact Sub-section (2) of Section 203 which vests the concurrent jurisdiction in the Nyaya Panchayat itself provides that that jurisdiction has been vested in the Panchayat "without prejudice to any other law for the time being in force in this behalf". It appears that by making provision under Sub-section (2) of Section 203 for a Nyaya Panchayat to entertain and decide an application for maintenance upto one hundred rupees per month only, the Legislature did not intend to bar the jurisdiction of the Magistrate in such a case which was vested in him u/s 488 of the Code of Criminal Procedure.

There is no force in this petition and it is dismissed. There will be no order as to costs.