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Anna Raghu Patil Vs. the State of Maharashtra - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case Number Criminal Revision No. 740 of 1968
Judge
Reported in(1969)71BOMLR496; 1969MhLJ736
AppellantAnna Raghu Patil
RespondentThe State of Maharashtra
DispositionApplication allowed
Excerpt:
.....88, 75, 73 - criminal procedure code (act v of 1898), sections 38, 29--non-establishment of nyaya panchayat in particular area--jurisdiction of ordinary courts to entertain suits specified in section 73 or to take cognisance of offences specified in section 75 whether barred in absence of direction from district or sessions court.;under section 88 of the bombay village panchayats act, 1958, the bar of jurisdiction of the ordinary courts to entertain suits specified in section 78 or to take cognizance of offences specified in section 75 of the act, in the absence of any direction in writing from the district or the sessions court, as the case may be, is complete and absolute and it has not been made dependent upon the establishment of a nyaya panchayat for the area in question...........at sangli, wherein it was contended that the alleged offence being exclusively triable by the nyaya panchayat under the bombay village panchayats act, 1958, the learned judicial magistrate, first class, tasgaon had no jurisdiction to take cognizance of the same and consequently, the whole trial was vitiated and bad in law. this contention was rejected by the learned additional sessions judge who held that as long as a nyaya panchayat was not established for vasagade, the judicial magistrate, first class, tasgaon had jurisdiction to entertain the complaint filed by the sarpanch and take cognizance of the alleged offence and, in that view of the matter, the revision application filed by the petitioner was dismissed on june 28, 1968. being aggrieved by the decision of the learned.....
Judgment:

Kamat, J.

1. The petitioner Anna Raghu Patil is a resident of Vasagade, Taluka Tasgaon, District Sangli. During the month of December 1966, he demolished a portion of his old house and erected a new building thereon, without the previous permission of the Village Panchayat. The Panchayat Committee, in its meeting held on February 27, 1967, passed a resolution unanimously that the petitioner should be prosecuted for having erected a new building without the previous permission of the Village Panchayat. Accordingly, the Sarpanch of the Panchayat filed a complaint under Section 52(4) of the Bombay Village Panchayats Act, 1958, against the petitioner in the Court of the Judicial Magistrate, First 'Class, Tasgaon. The petitioner admitted that he had demolished a portion of his old house and erected a new building thereon without the previous permission of the Village Panchayat, but contended that he had made an application to the Panchayat for the necessary permission and the erection of the new building was carried out by him after waiting for about two and half months. The learned Magistrate held the petitioner guilty of having committed the alleged offence, convicted him under Section 52 of the Bombay Village Panchayats Act and sentenced him to pay a fine of Rs. 50 or in default to suffer imprisonment for two weeks. Being aggrieved by the order of conviction and the sentence of fine, the petitioner preferred a revision application, being Criminal Revision Application No. 3 of 1968, to the Sessions Court at Sangli, wherein it was contended that the alleged offence being exclusively triable by the Nyaya Panchayat under the Bombay Village Panchayats Act, 1958, the learned Judicial Magistrate, First Class, Tasgaon had no jurisdiction to take cognizance of the same and consequently, the whole trial was vitiated and bad in law. This contention was rejected by the learned Additional Sessions Judge who held that as long as a Nyaya Panchayat was not established for Vasagade, the Judicial Magistrate, First Class, Tasgaon had jurisdiction to entertain the complaint filed by the Sarpanch and take cognizance of the alleged offence and, in that view of the matter, the revision application filed by the petitioner was dismissed on June 28, 1968. Being aggrieved by the decision of the learned Additional Sessions Judge, the petitioner has preferred the present Criminal Revision Application to this Court.

2. The only point involved in this Criminal Revision Application is with regard to the interpretation of Section 88 of the Bombay Village Panchayats Act, 1958, which reads thus:

Notwithstanding anything contained in any law for the time being in force, no court shall entertain any suit specified in Section 73 or take cognizance of any offence specified in Section 75 unless and until the District or the Sessions Court, as the case may be, has passed an order in writing under Section 108 or 120, or on being satisfied that any Nyaya Panchayat is not functioning in any group of villages or for any sufficient cause, otherwise directs.

According to Mr. Shah, learned advocate for the petitioner, by virtue of the above provisions contained in Section 88, the jurisdiction of the ordinary civil and criminal Courts to entertain any suit specified in Section 73 or to take cognizance of any offence specified in Section 75 has been expressly barred, unless the District or the Sessions Court, as the case may be, directs otherwise. The offence alleged to have been committed by the petitioner is one of the offences specified in Section 75 of the Bombay Village Panchayats Act and the Judicial Magistrate, First Class, Tasgaon had, therefore, no jurisdiction to take cognizance of that offence, without an order from the Sessions Court to do so. The submission of Mr. Joshi, learned lion. Assistant Government Pleader, in this connection, however, is that Section 88 comes into play only when a Nyaya Panchayat is established for a group of villages and the powers exercisable by the said Nyaya panchayat are specified by general or special orders of the State Government under Section 64(3) of the Bombay Village Panchayats Act.

3. Under Section 3(72) of the Bombay Village Panchayats Act, 'Nyaya panchayat' means a Nyaya panchayat constituted or deemed to have been constituted under this Act for the purpose of the trial of suits and cases. Sections 63 and 64 provide for the establishment and constitution of a Nyaya panchayat for the administration of civil and criminal justice in a group of villages, and Sub-section (5) of Section 64 lays down that a Nyaya panchayat established and constituted as aforesaid, may exercise all or any of the powers mentioned in Sub-sections (7) and (2) of Section 73 and Section 75, as the State Government may by general or special order specify in this behalf. It is an admitted fact that a Nyaya panchayat has not so far been established for Vasagade and contiguous villages, although the Act came into force more than ten years ago. The question, therefore, for consideration is whether the Judicial Magistrate, First 'Class, Tasgaon had no jurisdiction to take cognizance of the alleged offence, even though no Nyaya panchayat has been established for Vasagade and contiguous villages and no general or special order have been, passed by the State Government specifying the powers exercisable by such Nyaya panchayat. The answer to this question is to be found in Sections 28 and 29 of the Code of Criminal Procedure. Section 28 provides:

Subject to the other provisions of this Code, any offence under the Indian Penal Code may be tried :

(a) by the High Court, or

(b) by the Court of Session, or

(c) by any other Court by which such offence is shown in the eighth column of the second schedule to be triable.

Section 29 lays down:

(1) Subject to the other provisions of this Code, any offence under any other law shall, when any Court is mentioned in this behalf in such law, be tried by such Court.

(2) When no Court is so mentioned, it may be tried by the High Court or subject as aforesaid by any Court constituted under this Code by which such offence is shown in the eighth column of the second schedule to be triable.

The scheme of the Criminal Procedure Code is that it provides separately for trial of offences under the Penal Code and for offences under any other law. The Court which is to try them is indicated in the Code in the eighth column of the Second Schedule. The first part deals with offences under the Penal Code and the second part deals with offences under any other law. The last entry in the Second Schedule provides for the trial of offences under any other law which are punishable with imprisonment for less than one year or with fine only and they are made triable by 'any Magistrate'. If the matter were governed by the Second Schedule, the last entry would have undoubtedly comprehended the Judicial Magistrate, First Class, Tasgaon. But Section 29 says that offences under any other law shall be tried by that Court which that law mentions and it is only when no Court is mentioned that the eighth column of the Second Schedule is applicable. In the present case, Section 75 of the Bombay Village panchayats Act expressly lays down that a Nyaya panchayat shall take cognizance of and try all or any of the offences mentioned in that section (including the abetment thereof, or attempt to commit any such offences) subject to the provisions of Sub-section (5) of Section 64. The offence alleged to have been committed by the petitioner is one of the offences specifically mentioned in Section 75 and cognizance of that offence could, therefore, be taken only by the Nyaya panchayat. It cannot be suggested that a Nyaya panchayat is not a Court recognized by the Code of Criminal Procedure. Section 6 of the Criminal Procedure Code clearly contemplates and recognizes that besides the High Court and the five classes of criminal Courts mentioned therein, there may be other Courts constituted under other laws. A Nyaya Panchayat is undoubtedly a Court constituted under the Bombay Village Panchayats Act and exercising judicial powers and functions. An' offence specified in Section 75 of the Bombay Village Panchayats Act can, therefore, be taken cognizance of only by a Nyaya Panchayat and not by the Courts mentioned in the eighth column of the Second Schedule. The words of Sub-section (1) of Section 29 are very clear and peremptory. The provision of the Third Schedule cannot be pressed into service because they only define general powers and not create jurisdictions to try offences which the Second Schedule does. The correct position of law in this behalf has been clearly explained by the Supreme Court in State of U. P. v. Sabir Ali : 1964CriLJ606 .

4. The wording of Section 88 of the Bombay Village Panchayats Act is also very clear and mandatory. It expressly lays down that notwithstanding- anything contained in any other law for the time being in force, 110 Court shall entertain any suit specified in Section 73 or take cognizance of any offence specified in Section 75, unless and until the District or the Sessions Court, as the case may be, has passed an order in writing under Section 108 or 120 or on being satisfied that any Nyaya Panchayat is not functioning in any group of villages or for any sufficient cause, otherwise directs. The bar of jurisdiction of the ordinary Courts to entertain suits specified in Section 73 and to take cognizance of offences specified in Section 75, in the absence of any direction in writing from the District or the Sessions Court, as the case may be, is complete and absolute and it has not been made; dependent upon the establishment of a Nyaya Panchayat for that particular area. If the intention of the Legislature was that the provisions of Section 88 should come into operation only after the establishment of a Nyaya Panchayat, that intention could and would have easily been expressed by framing the section with the words 'After a Nyaya Panchayat has been established for any area, no Court... '. It appears that the Legislature contemplated that Nyaya Panchayats will be established as soon as the Act came into force and they will be 'invested with the necessary powers by the State Government. But for some reason or other, Nyaya Panchayats have not been established for certain areas and some Nyaya Panchayats, although established, are not functioning. The difficulty arises only in those areas where Nyaya Panchayats have not been established or, though established, are not functioning. The argument of Mr. Joshi is that in such a situation, the jurisdiction of the ordinary civil and criminal Courts to entertain suits specified in Section 73 and to take cognizance of the offences specified in Section 75 is not barred, otherwise many aggrieved persons may find themselves without any remedy at law. While interpreting a statute, the words used by the Legislature must be given their plain meaning. The rule of construction is 'to intend the legislature to have meant what they have actually expressed.' It matters not, in such a case, what the consequences may be. The underlying principle is that the meaning and intention of a statute must be collected from the plain and unambiguous expression used therein rather than from any notions which may be entertained by the Court as to what is just or expedient. Mr. Joshi's submission that if Section 88 of the Bombay Village Panchayats Act is interpreted by giving the words used therein their plain meaning, many aggrieved persons may find themselves without any remedy at law is also not correct. With a view to meet such a situation, the Legislature, in its wisdom, has expressly provided that no Court shall entertain any suit specified in Section 73 or take cognizance of any offence specified in Section 75,. unless and until the District or the Sessions Court, as the case may be, has passed an order in writing under Section 108 or 120, or on being satisfied that any Nyaya Panchayat is not functioning in any group of villages or for any sufficient cause, otherwise directs.

In the present case, the Sarpanch of the Village Panchayat of Vasagade could have easily moved the Sessions Court at Sangli for an order directing the Judicial Magistrate, First Class, Tasgaon to take cognizance of the alleged offence and try the case. The Sessions Court at Sangli could have passed such an order on being satisfied that no Nyaya Panchayat had been established for Vasagade and contiguous villages. Non-establishment of a Nyaya panchayat for Vasagade and contiguous villages was certainly a valid and sufficient cause for the Sessions Court at Sangli to issue such a direction. Admittedly, no such order or direction was either sought or obtained from the Sessions Court at Sangli. In the absence of such a direction or order in writing from the Sessions Court at Sangli, the Judicial Magistrate, First Class, Tasgaon had, in my opinion, no jurisdiction to take cognizance of the alleged offence and consequently, the whole trial is vitiated and void under Section 530(p) of the Code of Criminal Procedure.

5. For the reasons indicated above, the revision application is allowed. The conviction of the petitioner and the sentence of fine imposed upon him are set aside and the petitioner is discharged. The amount of fine, if paid, shall be refunded to the petitioner.

6. The Rule is made absolute.


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