1. This reference made by the Sessions Judge, Akola, raises an interesting question under the Bombay Village Panchayats Act.
2. It appears that though a charge-sheet was presented before a Judicial Magistrate, First Class, Akola, on December 5, 1960, by the Station Officer, Barsi-Takli Police Station, through constable No. 980 Ramsahai, it was obviously a police report under Section 173 of the Code of Criminal Procedure in respect of an offence under Section 379 of the Indian Penal Code, alleged to have been committed by one Sakharam Vanjari of Takli. Copies of the documents under Section 173(4) of the Code were supplied to the accused. The case was ordered to be registered on that day by the Presiding Magistrate and the accused who was perhaps present was bound over for appearance on the next date, December 13, 1960. On that day, a contention appears to have been raised on behalf of the accused that the Judge Magistrate was required to return the complaint for presentation to the proper forum, namely, the Nyaya Panchayat, having jurisdiction to try the case. The learned Magistrate heard arguments from the Police Prosecutor as well as counsel for the accused and came to the conclusion that the offence complained of was triable under Section 75 of the Bombay Village Panchayats Act before a Nyaya Panchayat as the value of the property was less than Rs. 20. Therefore, he ordered the charge-sheet and other documents accompanying the charge-sheet to be returned to the Police Station Officer, Barsi-Takli, for presentation to the Nyaya Panchayat having jurisdiction to try the offence. It was assumed perhaps that there was a Nyaya Panchayat having jurisdiction to try this offence alleged to have been committed by the accused. Against this order the State filed a revision application before the Sessions Judge, Akola, for making a reference to this Court quashing the order of the trying Magistrate and directing him to proceed with the case according to law. The revision application was allowed by the Sessions Judge and the Sessions Judge has made this reference with a recommendation that the order passed by the trying Magistrate returning the charge-sheet for presentation to the Nyaya Panchayat should be set aside and the Magistrate be directed to proceed with the case according to law.
3. No appearance is put in on behalf of the accused in this case opposing the reference. However, in this case, the learned Assistant Government Pleader, appearing for the State, has invited my attention to different provisions of law and the interpretation that has to be put on the scheme of the Bombay Village Panchayats Act in the matter of cognisance of an offence by the Nyaya Panchayat in the village. It is pointed out that under Section 75 of the Village Panchayats Act, a Nyaya Panchayat is empowered to take cognisance of certain specified offences under different clauses of that section. Clause (a) enumerates offences under the Indian Penal Code and in this category is included the offence of theft where the value of the property stolen does not exceed Rs. 20, under Section 379 of the Indian Penal Code. Then follows Section 86 which prescribes the mode of institution of suits and cases. Sub-section (1) says that notwithstanding anything contained in the Code of Criminal Procedure, 1898, every case instituted under this Act shall be instituted before the member of the Nyaya Panchayat of the village in which the offence is committed, and if he be absent then before the Sarpanch of that village, and in his absence before the Upa-Sarpanch thereof. Then follows Section 87 in pursuance of which the trying Magistrate in this case ordered return of the complaint to the Police Officer. Section 87 is as follows:
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.
It will be seen that the section uses the words 'upon receiving a complaint of facts.' The question is whether the police report under Section 173 of the Code of Criminal Procedure constitutes a 'complaint of facts' on the basis of which cognisance can be taken by the Nyaya Panchayat. Now, the mode in which the proceedings are to he initiated before a Nyaya Panchayat are given in Section 90 of the Act which says-
Any person intending to institute a suit or case under this Act before a Nyaya Panchayat shall make an application in writing to the person before whom a suit or case can he instituted under Section 86, and shall at the same time pay the prescribed fees.
To this section is added a proviso which carves out an exception to this rule that if an Administrative Officer or any officer appointed under the Bombay Primary Education Act intends to institute a case under that Act such officer is allowed to send such application by registered post. Then follows Section 92 which enjoins on the Nyaya Panchayat concerned to fix a date and inform time and place for the next sitting to the complainant. Under Section 103, the Nyaya Panchayat is empowered to decide a case in the absence of the complainant if such complainant after having been informed of the time and place fixed for the hearing remains absent. Then follows Section 104 which permits compounding of any offence by the Nyaya Panchayat, if there is lawful agreement for composition and Sub-section (2) says that the Nyaya Panchayat may permit any case to be compounded. This Sub-section (2) of Section 104 which permits the Nyaya Panchayat to have any case compounded seems to include composition of offences which may otherwise be not compoundable under the normal provisions of the Code of Criminal Procedure.
4. These are some of the important provisions of the Bombay Village Panchayats Act dealing with the manner of taking cognisance of criminal cases by the Nyaya Panchayat to which reference is appropriately made in the considered order of reference made by the learned Sessions Judge. It is no doubt true that there is no definition of 'complaint' or 'complainant' in the Bombay Village Panchayats Act. The question is whether, therefore, the word 'complaint' appearing in Section 87 of the Act would include a police report under Section 173 of the Code of Criminal Procedure. 'Complaint' is defined in the Code of Criminal Procedure and it is well-known that the Code makes a well understood distinction between a complaint and a police report. A criminal case instituted on a complaint is distinguished from the criminal case instituted on a police report. They are dealt with by different procedures. That distinction applies both to the accused as well as persons who come before the Court for initiation of proceedings. In my opinion, the view of the learned Sessions Judge that the word 'complaint' in the Bombay Village Panchayats Act ought not to be held to include a police report is wel-founded. The scheme for trial of criminal cases before the Village Panchayat necessarily shows that the complaint must be in writing and by the person who is himself aggrieved or the person who can appear before the Nyaya Panchayat for prosecution of his complaint. It is not possible to hold that a public officer like Sub-Inspector who is empowered to initiate criminal proceedings by sending a police report would be required to attend before the Nyaya Panchayat from hearing to hearing or that the case can be decided in his absence if he were to be absent on a particular hearing. It is also not possible to hold that the police officer who makes a report regarding an offence for taking cognisance thereof by the Magistrate would have authority to compound the offence or that such offence will be capable of being compounded by the Nyaya Panchayat. The police officer will have no such authority. He is not a person aggrieved in the sense that he has suffered injury and yet that result will have to follow if the police officer making a report is to be deemed to be a person making a complaint under the Village Panchayats Act. In my opinion, therefore, on proper construction of the provision and the scheme of the Village Panchayats Act the word 'complaint' in Section 87 which enjoins on a Magistrate not to take cognisance of the offence instituted on a complaint of which cognisance can be taken by the Nyaya Panchayat must be restricted to a complaint in writing by the person aggrieved, that is, a complaint within the meaning of Section 4(h) of the Code of Criminal Procedure. It will be permissible to read the word 'complaint' in that sense as private complaint of the person who is aggrieved or who is authorised to make a complaint on behalf of the aggrieved person but the word complaint would not in my opinion include a police report or a charge sheet sent by a police officer to take cognisance of the offence. The procedure is entirely different and it will not be proper to include in 'complaint' in Section 87 of the Bombay Village Panchayats Act, a police report.
5. The result is that the reference is well-founded and it is accepted. The order passed by the trying Magistrate returning the complaint for being presented to the Nyaya Panchayat on December 27, 1960, in criminal case No. 1758/60 is set aside and the Magistrate is directed to deal with the case according to law.