S.P. Kotwal, C.J.
1. This criminal revision application has been referred to a Full Bench because it involves the decision of an important and an oft recurring question as to the proper interpretation of Section 88 of the Bombay Village Panchayats Act, 1958 (Bombay Act No. Ill of 1959).
2. Rangnath Sakharam Pawar the applicant along with Baban Bhagaji Gorane opponent No. 2 were charged with offences under Sections 323, 447, 504 and 506 (Part (1)) all read with Section 34 of the Indian Penal Code before the Judicial Magistrate, First Class, Shrirampur in Criminal Case No. 1135 of 1968. The Magistrate decided to issue summons only under Section 323 read with Section 34, Indian Penal Code. Before evidence on behalf of the complainant could be recorded, however, a preliminary objection came to be raised on behalf of the accused. The objection was that the Judicial Magistrate, First Class, Shrirampur, had no jurisdiction to try those offences because they were offences which were mentioned in Section 75 of the Act and, therefore, by virtue of the provisions of Section 88 of the Bombay Village Panchayats Act the jurisdiction of the Magistrate was barred. Reliance was also placed before the Magistrate upon the judgment of Mr. Justice Kamat in Anna Raghu v. The State : (1969)71BOMLR496 , in which it has been held that the bar of jurisdiction of the regular criminal Courts under the Code of Criminal Procedure enacted by Section 88 to take cognizance of offences specified in Section 75 of the Bombay Village Panchayats Act was complete and absolute and it was not dependent upon the establishment or existence of a Nyaya Panchayat for the area in question.
3. The learned Magistrate overruled the preliminary objection. He relied upon the provisions of Section 63 and Section 64(2) and (3) of that Act and held that the plain reading of Section 64(3) of the Panchayats Act makes it clear that unless a Nyaya Panchayat is invested with powers to try certain offences mentioned in Section 75 of the Panchayats Act a Nyaya Panchayat ipso facto oil its establishment cannot take cognizance of and try all the offences mentioned in Section 75 of the Panchayat Act. As regards the decision in Anna Raghu's case the learned Magistrate distinguished it on the ground that in that case no Nyaya Panchayat had been established for the area in question while in the case before him a Nyaya Panchayat had been established and was functioning but only the jurisdiction to take cognizance of the offences in the case (i.e. Section 323/34, Indian Penal Code) before him had not been conferred upon it. He therefore held that he could proceed with the trial before him. That order passed on the preliminary objection is being challenged in the present Criminal Revision Application.
4. The revision application came initially before Mr. Justice Madon before whom again the decision in Anna Raghu's case as also a number of subsequent decisions of single Judges of this Court (to which we will presently refer) were relied on. Madon J. pointed out that in Anna Raghu's case the offence with which Kamat J. was concerned was an offence under Section 52 of the Panchayats Act and that was an offence which was created only under that Act and the ratio of the decision in Anna Raghu's case must therefore be limited only to offences arising under that Act. In so far as Kamat J. had made further observations in considering Section 88 of the Panchayats Act as regards offences under other Acts or under the Indian Penal Code, Madon J. was unable to accept the ratio of the decision in Anna Raghu's case. Since similar observations were also made by several single Judges of this Court in subsequent cases Madon J. thought it fit to refer the Criminal Revision Application to a larger Bench.
5. Unfortunately by the time the reference came before a Division Bench consisting of my learned brother Malvankar J. and myself the decision of a Division Bench of this Court further intervened. That was the decision of the Division Bench (Deshmukh and Apte JJ.) in Vatsalabai Sahharam Kokate v. Ganesh Ramchandra Salunke (1971) Criminal Revision Application No. 1074 of 1970 and since we were of the view that we could not accept the ratio of the decision in Anna Raghu's case in its entirety, which case had already been followed by the Division Bench in Vatsalabai Sahharam Kokate v. Ganesh Ramchandra Salunke, we decided to refer the present Revision Application to a Full Bench.
6. Much the same or similar contentions as were advanced before the learned trying Magistrate and before Madon J. have been advanced before us on behalf of the applicant by Mr. Sali, but before we state those contentions and proceed to deal with them it is best that we first refer to some of the provisions of the law which fall to be construed. The Bombay Village Panchayats Act is a comparatively recent legislation. It was enacted on January 23, 1959 but by virtue of Section 2(2) it came into force on June 1, 1959. Its purpose and object is clear from its preamble which reads
Whereas it is expedient to amend and consolidate the law relating to the constitution and administration of village panchayats in the State of Bombay with a view to establishing a village panchayat for every village or group of villages and investing them with such powers and authority as may be necessary to enable them to function as units of local self-government and of development activities in rural areas, and for certain other matters.
Section 3(3) defines the word 'case' to mean with reference to any judicial proceedings, a criminal proceeding in respect of any offence triable by a Nyaya Panchayat. Section 3(12) defines 'Nyaya Panchayat' to mean a Nyaya Panchayat constituted or deemed to have been constituted under this Act for the purpose of the trial of suits and cases. The first five Chapters deal with the Gram Sabhas and establishment and constitution of Panchayats, their administrative powers and duties, its property and fund, and its establishment, budget and accounts. We are not concerned with any of these provisions.
7. It is Chapter VI that provides for the constitution and powers of Nyaya Panchayats. Section 63 deals with establishment of Nyaya Panchayats and provides that there shall be a Nyaya Panchayat for the administration of civil and criminal justice in a group of villages, not being less than five in number, as the State Government may by notification in the Official Gazette determine. There is a provision that the villages comprising a group shall, as far as possible, be contiguous. Section 64 provides for the constitution of Nyaya Panchayats and their powers and in substance it makes a mandatory provision that the Nyaya Panchayat shall consist of one person elected by each panchayat and a woman, if any, nominated in the manner provided. Each Panchayat is enjoined after the election of the Sarpunch and Upa-Sarpunch to elect out of the members of the Gram Sabha of that village, in the manner prescribed one person for the purpose of constituting the Nyaya Panchayat and there is a specific provision that the Sarpanch and the Upa-Sarpunch of the Panchayat shall not be eligible for being chosen as, and for being a member of the Nyaya Panchayat. Sub-section (2A) is a provision to ensure that one woman at least is on the Nyaya Panchayat and Sub-section (2B) lays down the qualification for being a member of the Nyaya Panchayat namely that no person shall be eligible for election or nomination as a member of a Nyaya Panchayat unless he has completed the age of twenty-five years and shall have passed 'such educational test as the State Government may from time to time prescribe in this behalf'. We were informed that under the Rules this test was the fourth standard in the vernacular. We are not concerned with the other sub-sections of Section 64, but Sub-section (3), (4) and (5) are important and very material for the purposes of deciding the controversy that has been raised.
Sub-section (3) of Section 64 runs as follows:
(3) The Nyaya Panchayat constituted as aforesaid, may exercise all or any of the powers mentioned in Sub-sections (1) and (2) of Section 73 and Section 75, as the State Government may by general or special order specify in this behalf.
Sub-section (4) provides:
(4) The State Government may at any time, by notification in the Official Gazette, direct that such Nyaya Panchayat shall exercise all or any of the judicial powers mentioned in Sub-section (3) of Section 73 and Section 79.
Sub-section (5) provides:
(5) If in the opinion of the State Government a Nyaya Panchayat has been incompetent in the exercise, or has been guilty of the abuse of its powers, the Government may at any time by notification in the Official Gazette withdraw all or any of the powers vested in, or conferred on, such Nyaya Panchayat.
8. It will be noticed that Sub-section (3) of Section 64 refers to two sections, Section 73 and Section 75. Section 73 we are not concerned with here, because Section 73 deals with suits triable by Nyaya Panchayats, but Section 75 is material. The operative part of Section 75 runs as follows:
A Nyaya Panchayat shall take cognizance of and try all or any of the following offences (including the abetment thereof, or attempt to commit any such offences) subject to the provisions of Sub-section (5) of Section 64.
Then follows (in Clauses (a) to (f)) a long enumeration of offences under the Indian Penal Code and under other special laws including the Village Panchayats Act itself. So far as we are concerned, the offence charged in the present case against the accused was under Section 323 read with 34 and the relevant enumeration is in Section 75(a) as follows:
SectionVoluntarily causing hurt .. .. .. .. .. 323
Similarly other sections are referred to and while we are mentioning this section we may refer to the other offences,because we will have to refer to them subsequently. These are:
75(a) Under the Indian Penal Code-Negligently doing any act known to be likely to Sectionspread the infection of any disease dangerous to life .. .. .. 269Fouling the water of a public spring or reservoir.. .. .. .. 277Causing danger, obstruction or injury to any person in any public way .. .. .. .. .. .. .. .. .. .. 283Voluntarily causing hurt .. .. .. .. .. .. .. .. 323(which we have already quoted above) Assault or use of criminal force otherwise than ongrave and sudden provocation .. .. .. .. .. .. .. .. 352Assault or use of criminal force on grave and sudden provocation .. .. .. .. .. .. .. .. .. .. 358Theft, where the value of the property stolen doesnot exceed Rs. 50 .. .. .. .. .. .. .. .. .. 370Mischief when the loss or damage caused does not exceed Rs. 50 in value .. .. .. .. .. .. .. .. 426Criminal trespass .. .. .. .. .. .. .. .. .. 447House trespass .. .. .. .. .. .. .. .. .. .. 448Dishonestly breaking open or unfastening any closedreceptacle, containing or supposed to contain property .. .. .. 461Intentional insult with intent to provoke a breach of the peace .. .. .. .. .. .. .. .. .. .. 504Criminal intimidation .. .. .. .. .. .. .. .. 506Misconduct in public by a drunken person .. .. .. .. .. 510
Then there is an enumeration in the subsequent clauses of Section 75 of the various offences under special Acts such as Prevention of Cruelty to Animals Act, 1890, the Bombay District Vaccination Act, 1892, the Vaccination Act, 1880 in its application to the Vidarbha region, the Hyderabad Vaccination Act, 1951, the Bombay Primary Education Act, 1947 and similar Acts in other areas of Maharashtra and then an enumeration of offences 'Under this Act' namely the Bombay Village Punchayat Act. The offences specified under the Bombay Village Panchayats Act are the offences created under Sections 52, 53, 54, 176 and 177. There is a proviso to Section 75 which says 'Provided that no offence of theft shall be cognizable by any Nyaya Panchayat unless an accused person has been either apprehended or recognised and named.
9. With this resume of the provisions of the Act, we now turn to Section 88 under which the objection was raised before the trying Magistrate. Section 88 has been amended first under the Maharashtra Act 36 of 1965 and next under the Maharashtra Act 34 of 1970 with effect from January 1, 1971. We are not concerned in the present case with the latter amendment but only with the section as amended under the first amendment by the Maharashtra Act XXXVI of 1965. That section runs as follows:
Bar of jurisdiction of courts in suits and cases.: 88. 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.
(the italics are ours).
The words which are italicised were the words which were added by Section 42 of the Maharashtra Act 36 of 1965. The operative words which create the bar under Section 88 are 'no court shall take cognizance of any offence specified in Section 75' and the whole argument on which the objection was raised before the trying Magistrate, and in this Court before us, has been, that these words are plenary and admit of no qualification or exception and therefore all that the Court has to see is whether an offence is specified in Section 75 and if it is specified in Section 75, then no Court can take cognizance of it except the Nyaya Punchayat under the Act. This of course has been the contention of counsel subject to the condition laid down by the words 'unless and until the District or Sessions Court, as the case may be,...on being satisfied that any Nyaya Punchayat is not functioning in any group of villages or for any sufficient cause, otherwise directs.'
10. To appreciate the full ambit of this contention one important event remains to be mentioned and it is this that on April 19, 1961 the Government of Maharashtra under powers vested in them under Section 64(3) issued a notification purporting to specify certain powers which every Nyaya Panchayat constituted under Section 64 may exercise and that notification is as follows:
ORDER No. V.P.A. 1159-P dated 19.4.61.
In exercise of the powers conferred by Sub-section (3) of Section 64 of the Bombay Village Panchayats Act, 1958 (Bom. III of 1959), the Government of Maharashtra hereby specifies the following powers which every Nyaya Panchayat constituted under that section may exercise, that is to say:
(a) powers in respect of suits mentioned in Sub-sections (1) and (2) of Section 73 of the said Act; and
(b) powers in respect of offences mentioned in Section 75 except those under Sections 323, 352, 358, 379, 426, 447, 448, 461, 504, 506 and 510 of the Indian Penal Code, 1860.
With Clause (a) of the Notification again we are not here concerned because it relates to suits under Section 73, but Clause (b) is important. It is not merely a clause which confers powers but also limits the powers. It is in two parts. It gives powers to the Nyaya Panchayat in 'respect of offences mentioned in Section 75' and then limits them by saying 'except those under Sections 323, 352, 358, 379, 426, 447, 448, 461, 504, 506 and 510 of the Indian Penal Code'. We have already referred to the provisions of Clause (a) of Section 75 and enumerated the offences of which a Nyaya Panchayat can take cognizance of and try and a comparison of that enumeration with the offences which are excepted from the cognizance of the Nyaya Panchayat shows that only the following residue is left namely the offences under Sections 269, 277 and 283 of the Indian Penal Code which could be tried by the Nyaya Panchayat under Section 75(a). Practically the power to try most of the offences enumerated in Clause (a) of Section 75 has been taken away.
11. Despite this delimitation of the powers of the Nyaya Panchayat to take cognizance under Section 75 the contention is advanced that under Section 88 no Court can take cognizance of any of those offences specified in Section 75 unless and until the District or the Sessions Court otherwise directs. We are concerned in the present revision with the offence under Section 323 and although it is charged in conjunction with Section 34, since Section 34 does not create any separate offence, we are really concerned with the offence under Section 323 only. It has been urged that even though by virtue of the notification of 1961, this offence is no longer triable by the Nyaya Panchayat because it is withdrawn from the cognizance of the Nyaya Panchayat, nonetheless it is specified in Section 75 and if it is specified in Section 75 then no Court can take cognizance of it and in the present case there was no approach by the complainant to the Sessions Court for an order otherwise directing. Therefore the trying Magistrate would have no jurisdiction to try the offence under Section 323. Reliance is again placed upon the decision in Anna Raghu's case in which as we shall presently show there are, no doubt, some observations which refer to the offences under the Indian Penal Code and in regard to which it holds that the bar under Section 88 is an absolute bar irrespective of whether there is a Nyaya Panchayat in existence to try those offences or not. By extension of the principle of that case it is also argued that even if the offence under Section 323 is no longer within the cognizance of Nyaya Panchayat nonetheless the bar under Section 88 would continue to operate because it is an absolute bar.
12. The contention on behalf of the State has been that both Section 75 and Section 88 are subject to the provisions of Section 64(3) of the Act and that having regard to the object and purpose of the enactment as well as to the context in which Sections 64, 75 and 88 are placed, Section 75 cannot be read divorced from the provisions of Section 64 although Section 75 merely refers to one such section namely Sub-section (5) of Section 64. We proceed to examine this contention.
13. First and foremost we notice that Section 75 is not a jurisdictional section at all. It does not purport to deal with what are the powers of a Nyaya Panchayat or the jurisdiction of a Nyaya Panchayat. All that it lays down is, what are the offences cognizable by a Nyaya Panchayat. Now it is almost axiomatic that no Court can take cognizance of an offence unless it is first endowed with the power or jurisdiction to try that offence. In criminal law there is a clear cut distinction between the jurisdiction of a Court and its power to take cognizance of offences, although in some respects the two subjects may overlap.
14. Bearing in mind this distinction we revert to the provisions of the relevant sections. The only section in the Act which confers power or jurisdiction upon a Nyaya Panchayat is Section 64 and particularly Sub-section (3) of Section 64 which says that the Nyaya Panchayat after it is constituted tinder Section 64 'may exercise all or any of the powers mentioned in...Section 75 as the State Government may by general or special order specify in this behalf'. The express mention of 'all or any of the powers, in Section 75' in Section 64(3) and the express reference in Section 75 that it is subject to Section 64(5) show that the two sections make one integrated provision. It is only if and when a notification is issued under Sub-section (3) of Section 64 that the jurisdiction of the Nyaya Panchayat to try all or any of the offences enumerated in Section 75 would arise. The foregoing discussion thus makes clear two points, firstly that Section 75 is not a jurisdictional section at all. It only enumerates a large number of offences under the Indian Penal Code and other laws and under the Village Panchayats Act itself which at the mo3t the Nyaya Panchayat can take cognizance of and out of which the State Government may select some regarding which to confer jurisdiction. It so to say prescribes the overall limit within which the State Government may by a notification confer powers upon a Nyaya Panchayat. The powers can only arise if and when a notification under Sub-section (3) of Section 64 is made. Secondly, these provisions show that Section 64(3) and Section 75 are mutually complementary to each other and make one integrated provision. Unless there is first of all a jurisdiction conferred or an empowerment made the mere right to take cognizance in Section 75 can never give jurisdiction to try. Therefore, Section 75 must be held to be subject to Section 64. In other words, the step under Section 64(3) is essential to be taken in the first instance before the right to take cognizance under Section 75 by a Nyaya Panchayat can at all arise. If that be so, then we fail to see how Section 88 which expressly refers to Section 75 can stand by itself or come into operation without recourse to Section 64(3).
15. A reference may in this connection be made to the provisions of Section 87 of the Act which says that any Magistrate or Munsif-Magistrate upon receiving a complaint of facts constituting an offence cognizable by a Nyaya Panchayat shall return the complaint for presentation to the Nyaya Panchayat having jurisdiction to try the same (the italics are ours). Section 87 is complementary to the provisions of Section 75 because it speaks of an offence cognizable by a Nyaya Panchayat and it is Section 75 which enumerates the offences cognizable by a Nyaya Panchayat. The duty under Section 87 to return a complaint of facts constituting an offence cognizable under Section 75 is circumscribed by an important limitation or qualification namely that the complaint shall be returned for presentation to the Nyaya Panchayat having jurisdiction to try the same. Therefore, obviously if a Magistrate before whom a complaint is filed even though it may be a complaint of facts constituting an offence cognizable under Section 75 by a Nyaya Panchayat, cannot return the complaint for presentation to the Nyaya Panchayat unless he is satisfied that the Nyaya Panchayat has jurisdiction to try the same. Thus, if no Nyaya Panchayat is established at all in the villages concerned, or if an offence is taken out of the jurisdiction of a Nyaya Panchayat by a notification under Section 64(3)-as in the present case-it can hardly be said that there is a Nyaya Panchayat having jurisdiction to fry the same. It is clear, therefore, upon the provisions of Section 87 that the Magistrate's jurisdiction to continue to hear a complaint of facts constituting an offence cognizable by a Nyaya Panchayat under Section 75, is not taken away unless there is a Nyaya Panchayat having jurisdiction to try the same. Section 87 contemplates a stage later than the one contemplated in Section 88. Section 88 refers to taking cognizance of an offence under Section 75, and Section 87 to the return of a complaint after it has once boon received, but we have referred to Section 87 because, even under that section an operative and effective Nyaya Panchayat having jurisdiction to try the offences must exist before the Magistrate can return the complaint. A fortiori therefore under Section 88 the competency of the Magistrate to take cognizance of any offence specified in Section 75 would also be dependent upon there being an effective and operative Nyaya Panchayat to try that offence.
16. The cardinal rule of construction in matters of this kind was laid down almost four centuries ago in Heydon's Case (1584) 3 Co. Rep. 7a at P. 7b,
that for the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive as enlarging of the common law,) four things are to be discerned and considered : (1) What was the common law before the making of the Act. (2) What was the mischief and defect for which the common law did not provide. (3) What remedy the Parliament hath resolved and appointed to cure the disease of the commonwealth. (4) The true reason of the remedy; and then the office of all the judges is always to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief, and pro private commodo, and to add force and life to the cure and remedy, according to the true intent of the makers of the Act pro bono publico.
These rules are still in full force and effect but Craies (on Statute Law at page 96, 6th ed.) has pointed out that these rules are to be read 'with the addition that regard must now be had not only to the common law, but also to prior legislation and to the judicial interpretation thereof'. This classic statement of the law in Heydon's case was accepted and applied by the Supreme Court in Bengal Immunity Co. v. State of Bihar : 2SCR603 where it was quoted with approval and applied to the construction of Article 286 of the Constitution.
17. We have already dealt with the construction of the specific sections (Section 64(3), Section 75 and Section 88 of the Act) with which we are immediately concerned in this case, but in the light of these general principles we turn to consider what was the position before the Act; what was it that was intended to be provided or remedied by the Act and what was the true reason for the passing of the Act, and we find that these considerations also support the construction we have placed upon the sections with which we are concerned. Prior to the coming into force of the Bombay Village Panchayats Act all offences were triable by the regular criminal Courts established under the provisions of the Code of Criminal Procedure. Section 5(2) however provided that
All offences under any other law shall be investigated, inquired into, tried and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.
Therefore prior to the Bombay Village Panchayats Act offences under the Indian Penal Code were to be tried in accordance with the provisions contained in the Code, i.e. by the Courts set up under the Criminal Procedure Code and all other offences under any other law, i.e. the Bombay Village Panchayats Act were to be dealt with according to the provisions of that Act. The preamble of the Bombay Village Panchayats Act shows that for the first time the State Government with a view to associating the public in the rural areas with Governmental functions decided to constitute village panchayats for every village or group of villages and to invest them with such powers and authority as may be necessary to enable them to function as units of local self-government and to further their development activities in rural areas. In short it was a vast experiment in inculcating the art of democracy and self-government upon the people and the provisions of the Act show that the Legislature launched upon that experiment with extreme circumspection and in a very limited sphere.
18. At the same time that it transferred some of its functions it provided very stringent checks and safeguards even so far as the minor powers were concerned both of an executive and judicial nature. We are not concerned here with the executive powers vested in the Village Panchayat, but only with the judicial power. They are all conferred by Chapter VI and the procedure of Nyaya Panchayats is prescribed by Chapter VII. We have already shown what is the ambit of those judicial powers conferred upon the Nyaya Panchayats. There is a general enumeration of several powers both under the Indian Penal Code, other minor Acts and in regard to offences under the Bombay Village Panchayats Act itself, but this enumeration is the outer-most limit, the sum total of all the powers that can possibly be conferred upon Nyaya Panchayats even by Government. Section 75 does not confer thorn. They can only be conferred by a notification under Section 64(3) which is the power of the State Government to specify all or any of the judicial powers mentioned in Section 75. Therefore here was first a very stringent legislative control under which alone the Nyaya Panchayat could exercise judicial powers. Next there, was the control exercisable by the State Government by virtue of its discretion to grant or not to grant even the powers specified in Section 75 by the notification it has to issue under Section 64(3) and the other powers.
19. The notification that was issued on April 19, 1961, we have shown, purported to give power in respect of offences mentioned in Section 75, but those offences which have been excepted are the majority of the offences in Clause (a) of Section 75 and only in regard to three offences under the Indian Penal Code is power given to Nyaya Panchayats namely the offences under Sections 269, 277 and 283 of the Indian Penal Code. By a deliberate decision of the Government therefore the majority of the offences under the Indian Penal Code were excluded from the jurisdiction of Nyaya Panchayats. Apart from that, the other provisions of the Act also show that the State Government has further the amplest powers to control or limit the taking cognizance of offences by Nyaya Panchayats. Sub-section (5) of Section 64 provides that if in the opinion of the State Government a Nyaya Panchayat has been incompetent in the exercise, or has been guilty of the abuse of its powers, the Government may at any time by notification in the Official Gazette withdraw all or any of the powers vested in, or conferred on, such Nyaya Panchayat. Under Section 150 read with Section 64(5) vast powers are given to the State Government to dissolve or supersede a panchayat.
20. Even in Section 75 where the legislative limitations have been prescribed, that is to say, even when theoretically the powers of the Nyaya Panchayat are delineated, rigid conditions have been laid down. In the case of theft, the only offence they can try is 'Where the value of the property stolen does not exceed Rs. 50/-'. Similarly, in the case of mischief, the only offence they can try is 'When the loss or damage caused does not exceed Rs. 50/- in value'. These are the limitations to the cognizance of offences by Nyaya Panchayats which amount to legislative control of the powers of Nyaya Panchayats.
21. Then we turn to the judicial control over them and it is even more extensive and rigid. Sub-section (1) of Section 120 provides.the Sessions Court in any case may, at any time, either on the application of an aggrieved party or otherwise or on a reference made by a Nyaya Panchayat under Section 108, by order in writing quash any proceedings of a Nyaya Panchayat at any stage, or cancel any...order passed by a Nyaya Panchayat.
We have omitted reference to the civil proceedings because we are not concerned with them. Sub-section (3) of Section 120 provides that
Where an order has been passed by the Sessions Court under Sub-section (1) in respect of any case, proceedings in respect of the same offence may be instituted in the court of a magistrate having jurisdiction.
These two provisions of Section 120 therefore would clearly indicate that there was no question here of such a tribunal or authority or Court (we do not decide what it is) possibly ousting the jurisdiction of the regular Courts established under the Code of Criminal Procedure. Under Sub-section (1) of Section 121 the Sessions Court has the power to transfer any case to a criminal Court competent to try it at any time whether an application is made to it or not.
22. It will thus be seen that the creation of these authorities and the conferment of some powers upon them is in an extremely limited sphere and subject to the most stringent safeguards and it is in this context that the provisions of Section 88 must be construed read with the provisions of Sections 64(3) and 75. It could not have been the intention of the Legislature to totally oust the jurisdiction of the regular Court's of the land by setting up these judicial bodies with such attenuated powers. Upon these considerations the interpretation which we have put upon the provisions of Section 88 alone would be consonant with the object and purpose of the enactment.
23. On behalf of the applicants strong reliance was placed upon the so-called condition or limitation placed upon the bar created by Section 88 by the words.
unless and until the District or the Sessions Court,...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.
It was urged that in all cases of doubt or difficulty, particularly in a case like the present, whore on the one hand the State Government has by its notification declared that Section 323 is taken out of the cognizance of the Nyaya Panchayats, the aggrieved complainant can go to the Sessions Judge and obtain an order under the above clause and that therefore the interpretation of Section 88 must be literal, that is to say, when the words used are 'no court shall...take cognizance of any offence specified in Section 75' one has only to read Section 75 and if an offence is specified in it then the Magistrate's jurisdiction is ousted irrespective of consequences. Any resultant difficulty or hardship would be mitigated by going to the Sessions Judge and obtaining his order or direction.
24. In the first place, we have already shown that in our opinion a fair reading of the provisions of Section 88, Section 75 and Section 64(3) clearly shows that they must be read together and that the power of the State Government to specify offences under Section 64(3) would therefore have to be read into Section 88. If that interpretation is correct then we need not go to consider the so-called safeguard.
25. Moreover, we do not think that this is the sort of safeguard which deserves to be called a safeguard. Where there is no Nyaya Panchayat functioning in a group of villages, every person aggrieved by an offence committed against him which is triable by a Nyaya Panchayat cannot be expected to rush to the District head quarters in order to get an order from the Sessions Judge that the case may be tried by a Magistrate. Secondly, such a construction militates against the very purpose and object of the Act which was to introduce self-government in the rural areas and incidentally to bring justice to the door of the litigant. Such an interpretation would make it more difficult for the rural complainant to obtain redress than it would be for the ordinary complainant who is not governed by the Act. The latter can go straight to a Magistrate whereas the former must first obtain an order or direction from the Sessions Judge and then go to a Magistrate. That would make this power in the Sessions Judges more an obstacle than a safeguard. That could not be the intention of the statute. Thirdly, the clause is not an adequate safeguard at all because, in conceivable cases it is possible to urge that the clause would not govern the case and therefore would not be available to the complainant. As for instance, take the present case itself. Here the State Government has by the notification of 1961 expressly declared that the Nyaya Panchayats shall not take cognizance of the offence specified in Section 323 of the Indian Penal Code, which is the offence with which we are concerned. Now it is possible to urge (we do not decide that point, but merely refer to it incidentally) that such a case is not governed by the words 'that any Nyaya Panchayat is not functioning in any group of villages'. That would give rise to a further and perhaps a more difficult question of construction as to whether, when an offence is excepted from the cognizance of the Nyaya Panchayat it can be said that 'any Nyaya Panchayat is not functioning' in that village. It may be possible to so hold by stretching the meaning of the words a bit but we do not suppose that the complainant's right to have an offence against him tried and punished by a Court of law would be made to depend upon so tenuous a safeguard. Madon J. in his referring order has discussed this point in great detail at the end of para. 18 of his order and we are in agreement with him. We refer to that discussion merely to show that the so-called safeguard said to have been provided by the above clause of Section 88 is a very doubtful safeguard and may not cover all cases.
26. Further to accept the contention advanced on behalf of the applicants would in our opinion be most unreasonable and give rise to absurdity. What is in essence the contention? The contention is that when Section 88 says 'no court shall...take cognizance of any offence specified in Section 75' those words clearly imply all the offences enumerated in Section 75 and that no Court including the regular Magistrates under the Code of Criminal Procedure can take cognizance of those offences so long as they arise within the area of the Nyaya Panchayats. The argument further goes on, that the effect of such a provision is not to be considered because the words are clear and plenary. Such an argument would certainly give rise to the most absurd consequences, as for instance, in a case where although a Nyaya Panchayat is established under Section 63 and constituted under Section 64, Government does not issue a notification and therefore there is no Nyaya Panchayat. Is it still to be supposed that the bar of the jurisdiction of the ordinary Courts is to prevail because the offence is specified in Section 75? According to the contention of counsel that would be so. To accept such an argument would be to deprive a complainant of all remedy even though offences specified in Clause (a) of Section 75 are committed, because on the one hand, there is no Nyaya Panchayat which can try those offences and on the other hand, since the offences are specified in Section 75, the jurisdiction of the regular Magistrates is barred. The result would be that upon the argument in such a case the aggrieved complainant would have no remedy at all. Take also the present case itself. Upon the argument the offence under Section 323, Indian Penal Code is specified in Section 75. Therefore no Magistrate can take cognizance of that offence and by virtue of the notification of 1961 of the Government that offence (Section 323, Indian Penal Code) is taken away from the cognizance of Nyaya Panchayats. Therefore for all offences committed under Section 323 there is no remedy at all for the aggrieved complainant. We cannot permit a construction which leads to such absurd and unreasonable results.
27. The rule of construction in cases of this kind is thus stated in Becke v. Smith (1836) 150 E.R. 724,
It is a very useful rule, in the construction of a statute, to adhere to the ordinary meaning of the words used, and to the grammatical construction, unless that is at variance with the intention of the legislature, to be collected from the statute itself, or leads to any manifest absurdity or repugnance, in which case the language may be varied or modified, so as to avoid such inconvenience, but no further.
In Grey v. Pearson (1857) 6 H.L.C. 61, Lord Wensleydale stated the principle thus (p. 106):.I have been long and deeply impressed with the wisdom of the rule, now, I believe, universally adopted, at least in the Courts of Law in Westminister Hall, that in construing wills and indeed statutes, and all written instruments, the grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity and inconsistency, but no farther.
The same learned Judge reiterated the same principle in Abbott v. Middleton : Ricketts v. Carpenter (1858) 7 H.L.C. 68. Mr. Justice Blackburn put the principle slightly differently in Eastern Counties, & Co. Co. v. Marriage (1860) 9 H.L.C. 32 (p. 36:
The question is entirely one as to the construction of the Act. We are bound to look at the language used in the Act, construing it with reference to the object with respect to which the legislature has used that language, but construing it in its ordinary grammatical sense, unless there is something in the subject matter or the context to show that it is to be understood in some other sense, and doing all this we are to say what is the intention of the legislature expressed by that language.
28. Applying this principle of construction we must repel the argument advanced on behalf of the applicants that no matter what the consequences are, the literal moaning of the words 'offences specified in Section 75' in Section 88 must be given effect to even though the consequence may be that there is no Nyaya Panchayat in a village and therefore the offences specified in Section 75 cannot be taken cognizance of by them at all. On the other hand, we think that the proper construction of Section 88 is to read it in the light of the totality of the provisions of the Act and particularly Section 75 and Section 64(3) together. The last mentioned section in terms refers to Section 75 and therefore the two must be read together and Section 75 is mentioned in Section 88 and therefore all the three sections must be read together. So construed we have no doubt that so far as an offence under the Indian Penal Code is concerned where a Nyaya Panchayat is established but is not functioning or has ceased to function or an offence is taken out of the cognizance of a Nyaya Panchayat, the bar of Section 88 will not apply and the ordinary Courts of Magistrates would have jurisdiction to try the case.
29. Some distinction was sought to be drawn between Courts and other judicial or quasi-judicial authorities but even assuming that the Nyaya Panchayats constituted under the Act are not Courts but merely authorities having the trappings of a Court (we expressly decline to decide that question but will assume that they are Courts), the Nyaya Panchayats are judicial bodies set up with a very limited jurisdiction and for a very limited purpose. We have already shown those limitations. They have been set up under a special Act and under very careful safeguards. It is difficult to suppose that such bodies were intended to oust the jurisdiction of the regular Courts established under the Criminal Procedure Code, but where for instance even though the exclusion may operate there is no effective machinery provided for the trial of offences by such Courts, the general jurisdiction of the Courts under the Criminal Procedure Code would not be ousted. In Bhim Sen v. State of U.P. : 1955CriLJ1010 , the Supreme Court dealing with the provisions of the U.P. Panchayat Raj Act stated the general principle thus (p. 438, col. 2):.Exclusion of jurisdiction of a court of general jurisdiction, can be brought about by the setting up of a court of limited jurisdiction, in respect of the limited field, only if the vesting and the exercise of that limited jurisdiction is clear and operative. Where, as in this case, there is no adequate machinery for the exercise of this jurisdiction in a specific case, we cannot hold that the exercise of jurisdiction in respect of such a case by the Court of general jurisdiction is illegal.
That was a case where out of three accused before the Nyaya Panchayat one was resident outside the jurisdiction of the Nyaya Panchayat and therefore the case could not be tried by the Nyaya Panchayat under the U.P. Panchayat Raj Act and yet it was urged that the case could not go before the regular Magistrate's Court because there was exclusion of jurisdiction under the Panchayat Raj Act. Their Lordships repelled that contention by pointing out that no doubt a Court of special jurisdiction may oust or exclude the jurisdiction of a Court of general jurisdiction but in order to do so, the Court of special jurisdiction must have effective jurisdiction. The words used by their Lordships were that the exercise of that limited jurisdiction should be 'clear and operative'. Now in the present case if there is one thing clear it is that after the withdrawal of the offence under Section 323, Indian Penal Code from the cognizance of the Nyaya Panchayat, by the notification the Nyaya Panchayat's jurisdiction over that offence was neither 'clear' nor 'operative'. It is not effective at all and therefore the Nyaya Panchayat's special jurisdiction will not oust the jurisdiction of the regular Courts.
30. While so far we have merely dealt with the general rule as to ouster of the jurisdiction of the regular Courts of the land by the creation of special jurisdictions under a special statute, we must also indicate one important limitation of the rule. In the leading case in Wolverhampton Waterworks Co. v. Hawkesford (1859) 141 E.R. 486, the general rule was thus stated (p. 495):.There are three classes of cases in which a liability may be established founded upon a statute. One is, where there was a liability existing at common law, that liability is affirmed by a statute which gives a special and peculiar form of remedy different from the remedy which existed at common law : there, unless the statute contains words which expressly or by necessary implication exclude the common law remedy, and the party suing has his election to pursue either that or the statutory remedy. The second class of cases is, where the statute gives the right to sue merely, but provides no particular form of remedy : there, the party can only proceed by action at common law. But there is a third class, viz. where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it.
It is the third class of cases to which the principle which we have referred to above, will not apply. In Lachmi Chand v. Ram Pratap : AIR1934Pat670 , Courtney-Terrell, C.J. quoted this classic statement of Willes J. with approval but also approved the following passage from a decision of this Court in Bhaishankar v. The Municipal Corporation of Bombay I.L.R. (1907) Bom. 604 : 9 Bom. L.R. 417, from the judgment of Sir Lawrence Jenkins (p. 609):
But where a special tribunal, out of the ordinary course, is appointed by an Act to determine questions as to rights which are the creation of that Act, then, except so far as otherwise expressly provided or necessarily implied, that tribunal's jurisdiction to determine those questions is exclusive.
31. In the present case, we are concerned with an offence which is not the creature of the Village Panchayats Act. The offence is an offence under Section 323, Indian Penal Code. It was an offence created by a statute different from the Village Panchayats Act and therefore the failure of the remedy provided will not oust the jurisdiction of the regular Courts. But in Section 75 several offences under the Village Panchayats Act itself have been specified along with the offences under the Indian Penal Code and other statutes. Regarding offences which are thus the creatures of the Village Panchayats Act itself the failure of the special remedy provided by the Act itself must necessarily imply that by th3 failure to provide the special forum, the Legislature or those to whom the Legislature delegated its functions, intended that the remedy should not be available. Therefore the citizen will in such a case have no remedy. But where offences under the Indian Penal Code and other laws mentioned in Section 75 are specified and the special remedy indicated in the Act fails then those offences would clearly be triable by the regular Courts of the State. In such cases therefore the principle laid down in Bhaishankar v. The Municipal Corporation of Bombay which we have quoted above would not be attracted. In such a case unless the statutory remedy provided by the special Act is 'effective' the general remedy of approach to the normal Courts will not be ousted. These are our conclusions on a construction of the provisions of the Village Panchayats Act and upon those conclusions we must hold that in this case where an offence only under Section 323, Indian Penal Code is charged the Magistrate's Court would under the circumstances have jurisdiction to try that offence.
32. The sheet-anchor of the contrary argument on behalf of the applicants is the decision of Mr. Justice Kamat in Anna Raghu's case. That was a case where the offence charged was under Section 52(4) of the Bombay Village Panchayats Act itself. The accused in that case had 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. He was therefore charged for having erected a building without permission. His defence was that he had made an application to the Panchayat for the necessary permission and that the erection of the building was carried out by him after waiting for about two and a half months. The complaint was filed before the regular Magistrate who held the accused guilty and in a revision application before the Sessions Court at Sangli it was contended that the offence was exclusively triable by the Nyaya Panchayat under the Bombay Village Panchayats Act. The Additional Sessions Judge rejected that contention holding that as long as the Nyaya Panchayat was not established for Vasagade, the village concerned, the Judicial Magistrate, First Class had jurisdiction to entertain the complaint filed by the Sarpanch and take cognizance of the alleged offence. This decision of the Additional Sessions Judge was set aside by Mr. Justice Kamat in a revision before this Court. He held that the words of Section 88 'no court shall...take cognizance of any offence specified in Section 75' were plenary and even though a Nyaya Panchayat may not have been established, the Magistrate could not take cognizance of the offence because Section 88 bars it.
33. Now it must be remembered that in the case before Kamat J. the offences arose under a special Act namely the Bombay Village Panchayats Act itself. It was, to use the language of the Wolverhampton case, not a liability existing at common law but it was a liability created by a special statute and therefore the remedy provided by the special statute must be valid and it was not competent for the party to pursue his remedy in the regular Courts. Where the special statute thus creates an offence and says that it shall be triable only by a special Court or tribunal created by the same statute, then if the special statute fails to provide for a tribunal or Court or in other words fails to provide an effective remedy then the party aggrieved can have no remedy. But the position is not the same where the offence created is not the creature of the special statute but as here, the creature of the Indian Penal Code. In the latter case if the statute fails to provide for a tribunal or Court or if the offence is withdrawn, from the cognizance of the special Court or tribunal then the jurisdiction of the Magistrate's Court, which was always there can be availed of. Upon this distinction it seems to us that the actual decision which Kamat J. gave was, with respect, a correct decision in that case before him. But there are to be found certain expressions in the penultimate paragraph of that judgment where the learned Judge construed the provisions of Section 88 of the Village Panchayats Act where the distinction appears to have been lost sight of and the principle extended to offences under the Indian Penal Code also. To that extent and only to that extent we are respectfully not in agreement with that judgment.
34. Unfortunately the distinction was not made in Anna Raghu's case and was not kept in view also in some of the subsequent decisions of this Court. These decisions are in Chandrakant Balaji Deshmukh v. Gotiram Sitaram Deshmukh (1970) Criminal Revision Application No. 1059 of 1969, where the offences charged were under Sections 352, 447, 504 and 506 of the Indian Penal Code; Rukminibai Pandurang Chaugule v. Anusaya Yallappa Bhonsale (1970) Criminal Reference No. 126 of 1969, where the offences charged were under Sections 323 and 500 read with Section 34 and Section 504, Indian Penal Code; Putlabai Arjuna Kanse v. Sampat Balaku Kanse (1970) Criminal Reference No. 137 of 1969 where the offence charged was under Section 323 read with Section 34, Indian Penal Code. We are also not in agreement with the decision in Grampanchayat of Tirpan v. Yeshwant Doulu Ghorpade (1966) Criminal Reference No. 71 of 1965. There though the offence charged was under the Act namely the offence under Section 52 of the Bombay Village Panchayats Act, because there was no Nyaya Panchayat constituted and having jurisdiction over the village in which that offence arose, Wagle J. held that the Judicial Magistrate would have the jurisdiction to try the case. Upon the view which we have taken that decision cannot be justified.
35. The learned trying Magistrate who has a written careful, correct and well-considered order relied upon the decision in State of Maharashtra v. Tulsabai Ratnaji (1967) Criminal Reference No. 3 of 1967. In that case a complaint was filed under Sections 323 and 447 of the Indian Penal Code before a Magistrate but it was returned by the Magistrate for presentation to the Nyaya Panchayat on the ground that in his view Section 88 barred the trial of the complaint by him. Mr. Justice Paranjape set aside that order pointing out that offences under Sections 323 and 447, Indian Penal Code had been taken out of the ambit of the Nyaya Panchayat's jurisdiction by the State Government's notification of April 19, 1961. That decision is, with respect, correct. The case was on all fours with the present case and we can only approve of it.
36. In the view which we have taken the decision of the trying Magistrate was correct. The revision application is dismissed. The case will now go back to the Judicial Magistrate, First Class, Shrirampur for further trial in accordance with law.
37. Of the several other matters, put up along with this criminal revision application No. 228 of 1970 the following matters will now go back to the learned single Judge for decision with advertence to our decision in the present revision application. They are Criminal Revision Applications No. 414 of 1970 and No. 832 of 1970.
Re : Criminal Revision Application No. 894 of 1970:
In view of our judgment in Criminal Revision Application No. 228 of 1970 this criminal revision application is allowed. The judgment of the Additional Sessions Judge dated January 21, 1970, is set aside. The criminal appeal No. 305 of 1969 in the Sessions Court will now be further heard by the Sessions Judge on the merits.
Criminal Revision Application No. 938 of 1970:
In view of our judgment in Criminal Revision Application No. 228 of 1970 decided today this criminal revision application is allowed and the judgment of Mr. S.M. Pisolkar, Additional Sessions Judge dated June 30, 1970 and the judgment of Mr. V.R. Datar, Judicial Magistrate, First Class, Osmanabad dated November 24, 1969 are set aside and the appropriate Magistrate will now try the complaint on the merits and dispose of it.
Criminal Reference No. 41 of 1970:
In view of our judgment in Criminal Revision Application No. 228 of 1970 delivered today this reference is rejected. The criminal revision application No. 112 of 1969 will now be heard and disposed of by the Sessions Court.
Criminal Reference No. 8 of 1971:
In view of our judgment in Criminal Revision Application No. 228 of 1970 delivered today, this reference is allowed and the order of the Judicial Magistrate, First Class, Omerga dated June 15, 1970, is set aside and the case is sent back to the appropriate Judicial Magistrate for disposal according to law.