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State of Mysore Vs. Gurupadappa Appayyappa Kardesai - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKarnataka High Court
Decided On
Case NumberCriminal Appeal No. 337 of 1958
Judge
Reported inAIR1961Kant257; AIR1961Mys257
ActsConstitution of India - Articles 254 and 372; Bombay Village Panchayats Act, 1933 - Sections 1, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 58A, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87 and 88; Code of Criminal Procedure (CrPC) , 1898 - Sections 1(2), 6, 417 and 417(1); Government of India, 1935 - Sections 107; Mysore Sales Tax Act - Sections 22; Madras Prohibition Act
AppellantState of Mysore
RespondentGurupadappa Appayyappa Kardesai
Appellant AdvocateM. Santosh, High Court Government Pleader
Respondent AdvocateS.V. Mahajan, Adv.
Excerpt:
.....brief survey of the three chapters of the act clearly indicates that in respect of certain matters nyaya panchayats are constituted into courts exercising jurisdiction which, in their absence, would have been exercised by the ordinary civil or criminal courts. viewed in that light, the source of the power under which the bombay legislature enacted the bombay village panchayats act is clearly entry 5 of list ii of schedule vii of the constitution corresponding to entry 13 of the provincial list ii appended to schedule vii of the government of india act of 1935 which was the constitution act at the relevant period. where a piece of legislation in its pith and substance or, according to its true nature and character, falls within the competence of a legislature, it is well-established that..........to prefer this appeal.3. the provisions of the bombay village panchayats act relating to nyaya panchayats are contained in chapter vi comprising sections 37 to 58-a, chapter vii comprising sections 59 to 79 and chapter viii comprising sections 80 to 88. chapter vi deals with the constitution of the nyaya panchayats and the conferment of jurisdiction on them. nyaya panchayat is a body of five persons elected by the panchayat. the state government is empowered to confer on a nyaya panchayat the jurisdiction to try certain suits and certain offences from out of those mentioned in sections 39 to 41. section 57 provides that'notwithstanding anything contained in any law for the time being in, force, no court, subject to the provisions of section 56, shall entertain any suit.....
Judgment:

Narayana Pai, J.

1. The Nyaya Panchayat of Ankalgi village, Gokak Taluk, Balgaum District, constituted under the Bombay Village Panchayats Act of 1933, convicted the respondent Gurupadappa Appayyappa Kardesai of the offence of having contravened one of the bye-laws made under the Act and imposed a fine of Rs. 11/- on him in respect of it. He appealed to the Sessions Court, Bdgaum, in Criminal Appeal No. 172 of 1957 on its file. The Sessions Court allowed the appeal, set aside the conviction and acquitted the respondent. Against that order of acquittal, the State has filed tills appeal under Section 417 of the Code of Criminal Procedure.

2. On behalf of the respondent, a preliminary objection has been raised to the maintainability of this appeal. The contention on his behalf is that his appeal to the Sessions Court, the order in which is attacked in the appeal now before us, was presented to the Sessions Court under the provisions of Section 78 of the Bombay Act and that an order in appeal made under that section is, according to section 79 of the Act, final and is not subject to any further appeal, revision or review. The answer on behalf of the appellant-State to this objection is two-fold; Firstly, it is stated that the provisions of the Bombay Village Panchayats Act whereby certain offences are made triable by the Nyaya Panchayat; whose orders are made appealable to Sessions Courts, are matters of criminal procedure, the legislative competency in respect of which is governed by Entry 2 in concurrent List III of the VII Schedule of the Constitution.

On this basis, it is contended that the principles of repugnancy stated in Article 254 of the Constitution come into play. It is stated that although originally the Act might have been reserved for the previous sanction by the Governor-General as indicated in its preamble and although the continued competent operation of the Act might have been preserved by virtue of Article 372 of the Constitution, the position must now be taken to have completely changed by reason of the amendment of the Code of Criminal Procedure carried by the Central Act XXVI of 1955. By virtue of this amendment which, according to the argument, is a subsequent legislation or further legislation by Parliament within the scope of the proviso occurring at the end of the Article, there is an implied repeal of the Bombay Law to the extent to which it concerns itself with criminal procedure or at any rate, to the extent to which that law purports to take away the right of appeal by the State against an order of acquittal conferred upon it in general terms by Section 417 of the Code of Criminal Procedure.

The second answer is really implied in what is stated in the last preceding sentence, i.e. that although any further appeal against an order of the Sessions Judge under section 78 of the Act is prohibited by Section 79, the Sessions Court being a criminal Court specifically mentioned in section 6 of the Code of Criminal Procedure and therefore within the meaning of the term 'any Court' occurring in Sub-section (1) of Section 417, the State is entitled under that sub-section to prefer this appeal.

3. The provisions of the Bombay Village Panchayats Act relating to Nyaya Panchayats are contained in Chapter VI comprising Sections 37 to 58-A, Chapter VII comprising Sections 59 to 79 and Chapter VIII comprising Sections 80 to 88. Chapter VI deals with the constitution of the Nyaya Panchayats and the conferment of jurisdiction on them. Nyaya Panchayat is a body of five persons elected by the Panchayat. The State Government is empowered to confer on a Nyaya Panchayat the jurisdiction to try certain suits and certain offences from out of those mentioned in Sections 39 to 41. Section 57 provides that

'notwithstanding anything contained in any law for the time being in, force, no Court, subject to the provisions of Section 56, shall entertain any suit specified in Section 39 or take cognizance of any offence specified in Section 41, unless and until the District Or the Sessions Court, as the case may be, has passed an order in writing under Section 77 or 87'.

Section 56 requires any Magistrate who receives a complaint of facts constituting an offence cognizable by a Nyaya Panchayat, to return the complaint for presentation to the Nyaya Panchayat having jurisdiction to try the same, unless reasons to the contrary are shown to the satisfaction of the Magistrate. Section 77 empowers the District Court or the Sessions Court on a reference by the Nyaya Panchayat to direct the transfer or a suit or case from the Nyaya pancnayat to a competent criminal or civil Court as the case may be, on the ground of intricacy, difficulty or importance relating to the proceeding, Section 87 empowers the District Court or Sessions Court to quash any proceedings or cancel any decree or order of the Nyaya Panchayat in the circumstances of the case. Chapter VII contains detailed provisions prescribing the procedure which the Nyaya Panchayats are required to follow in suits and cases instituted before them. Chapter VIII deals' with the execution of decrees and orders of the Nyaya Panchayats.

This brief survey of the three Chapters of the Act clearly indicates that in respect of certain matters Nyaya Panchayats are constituted into Courts exercising jurisdiction which, in their absence, would have been exercised by the ordinary Civil or Criminal Courts. It is a special jurisdiction conferred upon these specially constituted tribunals in accordance with the provisions of the Act already referred to by us. In respect of that special jurisdiction, special procedure is also prescribed and only one appeal against the orders and decrees of the Nyaya Panchayats is allowed under this procedure.

4. Confining our attention now to criminal matters, it is no doubt true that the topic may or does bear the description of criminal procedure. But the question is whether, for that reason, the first argument on behalf of the State is available. As pointed out by the Supreme Court in A. S. Krishna v. State of Madras, (S) : 1957CriLJ409 , the source of legislative power or the competence of a particular piece of legislation has to be determined by examining the Act as a whole or having regard to what is described as its pith and substance or its true nature and character and it is not open to disintegrate the statute into several sections or parts and to relate them to different entries in the lists appended to Schedule VII of the Constitution and determine separately the competence or otherwise of each one of the sections or each one of the parts of the Act. Viewed in that light, the source of the power under which the Bombay Legislature enacted the Bombay Village Panchayats Act is clearly Entry 5 of List II of Schedule VII of the Constitution corresponding to Entry 13 of the Provincial List II appended to Schedule VII of the Government of India Act of 1935 which was the Constitution Act at the relevant period.

The provincial legislative list of the 1935 Government of India Act also contains two other entries which are relevant for our present purpose. They are Entry 2--'Jurisdiction and powers of all courts except the Federal Court, with respect to any of the matters in this list;....' and Entry 37-- 'Offences against laws with respect of any of the matters in this list', which correspond respectively to Entries 64 and 65 of List II to Schedule VII of the Constitution. We may also refer to Entry I of the Concurrent List appended to both the 1935 Act and the Constitution which reads:

'Criminal law, including all matters included in the Indian Penal Code at the commencement of this Constitution but excluding offences against laws with respect to any of the matters specified in List I or List II ......

5. The total effect of these constitutional provisions is that the Bombay Legislature while legislating upon the subject of village administration, was competent not merely to make provision for the constitution of Village Boards or Committees or other local bodies but also to define and punish offences in respect of that matter and also define and regulate the jurisdiction and powers of all Courts (except the Supreme Court) with respect to the same.

6. Once this result is reached, the provisions of Article 254 (corresponding to Section 107 of the Government of India Act, 1935) cease to be of relevance. The doctrine of repugnancy propounded in that article applies only in respect of matters enumerated in the Concurrent List and can have no bearing upon the question of competence or otherwise of any legislation exclusively falling with the State List or exclusively within the Central List.

Where a piece of legislation in its pith and substance or, according to its true nature and character, falls within the competence of a Legislature, it is well-established that the mere fact that in certain ancillary matters it might trench upon topics not within its legislative competence, does not render, either the whole Act or that part of the Act which may so trench upon the field not of its own competence, either in- competent or inoperative.

7. The answer to the second contention on behalf of the State is to be found in the Code of Criminal Procedure itself. While summarising the relevant provisions of the Bombay Act, we have already pointed out that they really amount to a creation of special Courts or conferment of special jurisdiction to be exercised in accordance with the special procedure prescribed by the Act. According to Sub-section (2) of the first section of the Code of Criminal Procedure, in the absence of any specific provision to the contrary, nothing contained in the Code is to affect any special or local law or any special jurisdiction or power conferred, or any special form of procedure prescribed by any other law.

The Sessions Court while hearing and disposing of an appeal under Section 78 of the Bombay Village Panchayats Act, is really exercising a special jurisdiction and not the ordinary jurisdiction attributable to it under the provisions of the Code of Criminal Procedure. While exercising that jurisdiction, any order passed by it becomes final under Section 79 of the Bombay Act. Hence the general provisions of Section 417 of the Code of Criminal Procedure do not and cannot affect the special provisions contained in Sections 78 and 79 of the Bombay Village Panchayats Act.

8. A similar view was taken by this Court with reference to a similar provision, viz, Section 22 of the Mysore Sales Tax Act in the case reported in State of Mysore v. Moharned Ismail. AIR 1958 Mys 143, in which also this Court applied the principles stated by the Supreme Court in the case (S) : 1957CriLJ409 already referred to, which dealt with the special provisions of the Madras Prohibition Act.

9. The preliminary objection therefore succeeds. We hold that this appeal by the State under Section 417 of the Code of Criminal Procedure is not competent.

10. As we have held that the appeal is not maintainable, we do not propose to consider any other questions on the merits of the case.

11. The appeal is dismissed.

12. Appeal dismissed.


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