1. This is an application under Article 227 of the Constitution for the quashing of the applicants' conviction by a Nyaya Panchayat for the offence of Section 379. I. P. C, The application has been referred by our brother Beg to a larger Bench for reconsideration of the view expressed by V. D. Bhargava, J. in Ashiq Ali v. Sub-Divisional Magis-trate, Hathras, 1956 All LJ 934.
2. Ram Saran, opposite party No. 1, made a report against the applicants that they cut his crop valued at Rs. 500/-. The police investigated the matter and submitted a report to the Sub-Divisional Magistrate for the applicants' prosecution for the offence under Section 379, I. P. C. It is not known what they said about the value of the crop alleged to have been cut away by the applicants. The Sub-Divisional Magistrate transferred the case to a judicial Magistrate, who ordered summonses to be issued against the applicants, presumably for the offence under Section 379, I. P. C. The summonses could not be served upon the applicants and before fresh summonses could be issued by him, he received a report from the Assistant Public Prosecutor to the effect that the value of the crop was not more than Rs. 50/- and that the case should be transferred to a Nyaya Panchayat. It is not known on what basis the Assistant Public Prosecutor pleaded that the value of the crop that had been cut away, was not more than Rs. 50/-. The Judicial Magistrate at once transferred the case to a Nyaya Panchayat in exercise of the powers conferred by Section 58 of the Panchayat Raj Act. Under Section 52 of the Act an offence o! Section 379, I. P. C., where the value of the stolen property does not exceed Rs. 50/-, is cognizable by a Nyaya Panchayat, Sub-section (1) of Section 55 provides that no Court shall take cognizance of any case triable by a Nyaya Panchayat; this means that the offence under Section 379, I. P. C., in which the value of the property does not exceed Rs. 50/-, cannot be taken cognizance of by a Magistrate. Sub-section (4) lays down that notwithstanding anything contained In Sub-section (1)
'where any Court has taken cognizance of any offence referred to in the said section and a summons has issued for the appearance of the accused in such a case, the offence may be enquired into and tried by such Court.'
Section 56 provides that
'3 Court, If it finds that a case is triable by a Nyaya Panchayat shall, except as provided in Sub-section (4) of Section 55, transfer the case to the Nyaya Panchayat.' It was in exercise of this power that the Judicial Magistrate had transferred the case to a Nyaya Panchayat. The applicants were tried by the Nyaya Panchayat and convicted under Section 379, I. P. C., and sentenced Rs. 3A each. They did not challenge its jurisdiction to try them. They 'filed an application in revision under Section 89, which was dismissed by the Sub-Divisional Magistrate. Then they 'came to this Court with a petition under Article 227. They relied upon 1956 All LJ 934 (Supra) in which Bhargava, J. observed as follows:
'Section 56 has a special proviso to the effect that If sub-section (4) of Section 55 is applicable, then it was not open to the Magistrate to transfer the case. Here the Court of Mr. Jain had taken cognizance and summons had been issued for the appearance of the accused and even 'evidence was recorded. In the circumstances even under Section 56 it once dognizance is taken by the Court it is not open to that Court to transfer the case.'
Our brother Beg was not inclined to agree with these observations and, therefore, referred the case to a larger Bench.
3. The question that has been raised before us is whether it is open to a Magistrate to transfer a case triable by a Nyaya Panchayat to the Nyaya Panchayat after taking cognizance of it or is bound to dispose of it himself. We nave referred to the relevant sections and have no hesitation whatsoever in saying that he has discretion either to dispose of the case himself or to transfer it to the Nyaya Panchayat and is not bound to dispose of it himself. Section 56 is a general provision dealing with all the cases In which a Court finds that a case is triable by a Nyaya Panchayat. A Court may find this as soon as the complaint or report is made to it or may find this after it has taken cognizance of the offence. Section 55(4) deals with the particular circumstance in which a Court has taken cognizance of an offence although it is triable exclusively by a Nyaya Panchayat and has issued a summons or warrant; in this particular circumstance the Court may dispose of the case itself. The word 'may' does not have the force of 'shall' and gives discretion to the Court either to dispose of the case itself or to transfer it to the Nyaya Panchayat. It has to be contrasted with the word 'shall' used in Sub-section (1) of Section 54 and also with the word 'shall' used in Section 56. When 'may' is used in contradistinction with 'shall' it cannot have the force of 'shall'. When Sub-section (1) of Section 55 requires that no Court shall take cognizance of an offence and Sub-section (4) requires that when a Court has in spite of this prohibition taken cognizance of an offence, it 'may' dispose of the casa itself, it clearly means that it is given discretion of disposing of it itself and is not bound to transfer the case to the Nyaya Panchayat. By virtue of Sub-section (1) it would be bound to transfer it to the Nyaya Panchayat because if it cannot, take cognizance of it, it cannot also proceed further after erroneously taking cognizance of it. Since it is absolutely debarred from taking cognizance of an offence or it erroneously takes cognizance of it but subsequently discovers the error, it cannot proceed further. Therefore, Sub-section (4) was enacted to give it a power to proceed further if it so liked; otherwise it would be bound to transfer the case to the Nyaya Panchayat. If the Legislature intended that it must invariably dispose of the case itself, it would have used the word 'shall' and not the word 'may' just as it has used the word 'shali' in Sub-section (1). After having used the word] 'shall' in Sub-section. (1), it would not have used the word 'may' in Sub-section (4) to serve the same purpose.
4. Sri Verma referred us to Collector of Monghyr v. Keshav Prasad Goenka, AIR 1962 SC 1694 at p. 1701 and Bhikraj Jaipufiia v. Union of India, AIR 1962 SC 113 at p. 119, but they are not helpful in the instant case. The word interpreted there was 'shall' and not 'may' and the reasons given for holding that the word 'shall' is sometimes mandatory and sometimes discretionary have no application when the question is whether the word 'may' is discretionary or mandatory. Moreover, it was explained by the Supreme Court in the latter case that no universal rule could be laid down as to whether a mandatory enactment shall be considered directory or obligatory and that it is the duty of the Court, before which the question arises, to get the real intention of the Legislature by carefu'lly considering the whole scope of the statute. In the earlier case also the Supreme Court said that the question has to be answered after considering the purpose for which the requirement has been enacted and the general scheme of the statute After considering the general scheme of the Panchayat Raj Act and the purpose behind it, we have little doubt that the legislature intended to give discretion to the Court by Sub-section (4) of Section 55. After a Court has erroneously taken cognizance of an offence triable by a Nyaya Panchayat and issued a summons it might have done, or might not have done, many other things and the Legislature did not intend ta lay down one rule to cover all circumstances. It could not have intended to lay down that regardless of however much it had done in the case it must transfer it to a Nyaya Panchayat or that regardless of however little it has done it must dispose of the case itself. If it has heard the cass to the end and only a judgment remains to be delivered, it would not be proper to require it to transfer the case to the Nyaya, Panchayat. Similarly if it has done nothing after issuing the summons, it would not be proper to require it to dispose of the case itself. There was nothing sacrosanct about the issue of a summons; if before issuing a summons it was bound to transfer the case to a Nyaya Panchayat, the mere fact that it issued a summons did not make any difference. The Legislature could not have laid down a hard and fast rule either that it must transfer the case to the Nyaya Panchayat or that it must dispose of it itself and, therefore, left it at its discretion.
5. The previous history of the legislation also lends support to this view. Section 56 as originally enacted required a Court at any stage of the proceeding to transfer it to the Panchayati Adalat on its finding that it was triable by a Panchayat Adalat. By amending the section tha Legislature intended to avoid such a hard and fast rule. Since its policy was that ordinarily a case triable by a Nyaya Panchayat should be decided by it, could not have said that every case of which cognizance was wrongly taken by a Court must be tried by it.
6. We respectfully dissent from the view expressed by V. D. Bhargava, J. in Ashiq Ali's case 1956 AH U 934. Section 56 does not lay down that a case of which cognizance has been taken by a Court cannot be transferred by it to the Nyaya Adalat nor does Sub-section (4) of Section 55 lay down that it is not open to the Court to transfer the case to the Nyaya Adalat. The learned Judge seems to have assumed, without deciding, that this is what these provisions lay down. We, therefore, hold that it was open to the Judicial Magistrate to transfer the case to the Nyaya Adalat and that the latter did not lack jurisdiction over it.
7. We also agree with our brother Beg, J. that a petition under Article 227 is not maintainable when the applicants could apply for certiorari to quash the order of the Nyaya Adalat. If the Nyaya Adalat acquired no jurisdiction by the order of transfer passed by the Judicial Magistrate, the conviction recorded by it could be quashed by certiorari. When this remedy was open to the applicants, they were not justified in invoking this Court's supervisory powers. They should have proceeded in the regular manner for the quashing of the conviction by certiorari.
8. In the result we dismiss this application with costs.