State of M.P. vs Bashudeo and others

C.P. Sen, J.—By this Order the connected Criminal Revision Nos. 237 to 242 all of 1976 are also disposed of as common question has been referred to this Court by Civil Judge, Class I, Chhatarpur, u/s 401 of the Code of Criminal Procedure, 1973. The question posed is whether Magistrates after taking congnizance of offences triable by a Nyaya Panchayat can transfer the case to Nyaya Panchayat?

It appears that the Civil Judge, Class I while inspecting records of some of the Nyaya Panchayats u/s 286 of the M.P. Panchayats Act 1962, came across 7 cases in which the Magistrates had transferred those cases from their Courts to the Nyaya Panchayats even after taking cognizances of the offences. It may be mentioned that the Sessions Judge is the revisional authority under the said Act and the Sessions Judge may confer the same power on any Civil Judge having jurisdiction in the area in which the Nyaya Panchayat is situated. In the present case, the Civil Judge reported the matter to this Court as a revisional authority. According to him, there are conflicting decisions and the subordinate Courts are confused and are not sure as to what is the correct legal position regarding cases triable by Nyaya Panchayat of which cognizance have been taken by Magistrates and whether after taking cognizance those cases can be transferred to Nyaya Panchayats for trial. The cases referred to in the report are all under the C.P. and Berar Panchayats Act, 1946, which has since been repealed by the M.P. Panchayats Act, 1962 mentioned above. All the 7 cases referred to are concerning the period between 1973 to 31-3-1974 and, therefore, they are governed by the present Act and by the old Code of Criminal Procedure, 1898, and not by the new Code. Though the report is purported to have been made u/s 401 of the new Code but, in fact, it should have been u/s 439 of the old Code.

In order to appreciate the decisions referred to in the report, it is first of all necessary to consider the relevant provisions of the C.P. and Berar Panchayats Act. u/s 68 of the said Act not with standing any thing contained in the Code of Criminal Procedure a Nyaya Panchayat shall have jurisdiction concurrent with that of the Criminal Courts within the local limits of whose jurisdiction the Nyaya Panchayat is situate for the trial of such offences as are specified in the Schedule. Section 72 provided that if a complaint of any offence mentioned in the Schedule is made to a Magistrate, the Magistrate shall instead of taking cognizance of the offence direct the complainant to present the complaint to the Nyaya Panchayat within whose jurisdiction the offence was committed. The earliest decision interpreting these 2 provisions is of Golvalker, J. in State v. Mehtar Bisau Lodhi 1961 J.L.J. 985 : 1961 M.P.L.J. 1019, wherein it has been observed that so long as a Nyaya Panchayat is functioning, the jurisdiction of Criminal Courts under the Criminal Procedure Code remains under suspension. It may be pointed out that this observations is in conflict with his earlier remark that u/s 68 of the C.P. and Berar Panchayats Act a Nyaya Panchayat shall have jurisdiction concurrent with that of the Criminal Courts for trial of offences under the Nyaya Panchayats Act. In a subsequent case Kekre J. in Phediya v. Mayaram 1961 M.P.L.J. SN 255, observed that the jurisdiction of a Magistrate to enquire into even such offences as were covered by Schedule to the Panchayats Act was not taken away. A Magistrate taking cognizance of offences mentioned in the Schedule to the Act would not be acting without jurisdiction However, he further opined that action u/s 72 could only be taken before cognizance is taken by Magistrate but once cognizance has been taken the case cannot be transferred to the Nyaya Panchayat. It appears that subsequently Golvalker, J. realised the mistake in his earlier decision and, therefore, in a later decision in State of M.P. v. Raghubar 1966 M.P.L.J. SN 39. he approved the view taken by Kekre, J. in Phediya v. Mayaram (supra) and held that the jurisdiction of Magistrates is concurrent with that of Nyaya Panchayats. Naik, J in Narmadaprasad v. Mooratsingh 1969 M.P.L.J. 710 quoted with approval the view taken by Kekre, J. in Phediva v Mayaram (Supra) though he observed that apparent confict with the earlier decision of Golvalker, J. It is, therefore, clear from the aforesaid four cases that the view taken by Kekre, J. enunciates the correct legal position in this matter under the provisions of C.P. and Berar Panchayats Act.

However, is fact, it was not necessary to go into controversy because the cases reported to this Court by the Civil Judge are all governed by M.P. Panchayats Act, 1962. The scheme of the present Act is quite different from the scheme of the C.P. and Berar Panchayats Act. u/s 229 of the present Act, subject to such exceptions a Nyaya Panchayat shall take cognizance of and try any offence specified in the Schedule. Under this provision a Magistrate has not been given concurrent jurisdiction with a Nyaya Panchayat as was u/s 68 of the old Act. Section 233 has the same wording as that of section 72 of the old Act and it provides that if a complaint of any offence mentioned in the Schedule be made to a Magistrate, he shall, instead of taking cognizance of offence direct the complainant to present the complaint to the Nyaya Panchayat within whose jurisdiction the offence was committed. Now, a clear departure has been made in the new Act under sections 228 and 238. Section 228 gives exclusive criminal jurisdiction to the Nyaya Panchayat notwithstanding anything contained in the Cr. P. Code. Section 238 bars jurisdiction of Criminal Courts for taking cognizance of any offered which is cognizable under this Act by a Nyaya Panchayat unless the Nyaya Panchayat has passed an order in writing u/s 278 or unless the Sessions Judge or any other judicial authority has passed an order in writing u/s 246. Section 246 empowers Sessions Judge to cancel jurisdiction of Nyaya Panchayat with respect to any criminal case. Section 278 empowers a Nyaya Panchayat to transfer certain cases to regular Court when the Nyaya Panchayat is of opinion that the case is of such a nature or of such intricacy or importance that it ought to be tried by a regular Court. Therefore, there can be no manner of doubt that the jurisdiction of Magistrate and Nyaya Panchayat under the present Act are not concurrent, the jurisdiction of Nyaya Panchayat is exclusive and that of Magistrate is suspended and is revived only when action is taken u/s 246 or when an order is passed by a Nyaya Panchayat u/s 278. Section 238 clearly bars jurisdiction of a regular Criminal Court. Therefore the only option before the Magistrate is to transfer such cases to the Nyaya Panchayat which are exclusively triable by Nyaya Panchayat. This has to be done u/s 233 by the Magistrate himself and there is no question of the Magistrate''s taking cognizance of such offences. Even when cognizance has been wrongly taken, nothing prevents Mag strates from transferring the cases to Nyaya Panchayat. u/s 192 (2) of the old and new Code cases can be transferred after taking cognizance. If the transfer was not quite in accordance with these sections, it would be a mere irregularity as provided by section 529 (f) of the old Code and section 460(f) of the present Code. Therefore, in all the 7 cases reported, the Magistrate had rightly transferred the cases to Nyaya Panchayats because the offences were exclusively triable by a Nyaya Panchayat.

The question posed is therefore answered accordingly.