1. This is a reference by the learned Sessions Judge of Guna, recommending that the conviction and sentence of the applicants Suraj Mal and others by the Sub-Divisional Magistrate of Chachoda under Section 323, I.P.C. be set aside.
2. It appears that the applicants were challaned in the Court of the Sub-Divisional Magistrate, Chachoda, for an offence under Section 147, I.P.C. The trial Magistrate did not find the charge under Section 147 prima facie established. He accordingly charged the accused for an offence under Section 323 I.P.C. At the end of the trial the learned Magistrate convicted the accused under Section 323, I.P.C. and sentenced each one of them to pay a fine of Rs. 50/-.
3. The accused persons filed a revision petition before the Sessions Judge of Guna who was of the opinion that an offence under Section 323, I.P.C. being exclusively triable by the Panchayat Court under the Madhya Bharat Panchayat Vidhan Samvat 2006 (Act No. 58 of 1949), the trial and the conviction of the applicants by the Sub-Divisional Magistrate were illegal. The learned Sessions Judge has accordingly recommended to this Court that the conviction be set aside.
4. I have heard Mr. Mungre, Government Advocate for the State who opposes the reference. In my opinion, the reference must be rejected. Under Section 75 of the Panchayat Vidhan, an offence under Section 323, Penal Code is, no doubt, within the cognizance of a Panchayat. Court. Section 77 of this Act says that if at any stage of proceedings in a criminal case pending before a Magistrate it appears that the case should be tried by the Panchayat Court, the Magistrate shall at once transfer the case to the Panchayat Court. There is no provision in the Act excluding the jurisdiction of other Courts to take cognizance of any case which is cognizable under Section 75 of the Act by a Panchayat Court. It is thus clear from these provisions that the jurisdiction which has been conferred on the Panchayat Court to try certain offences enumerated in Section 75 of the Act is not exclusive. Under Section 5, Criminal P.C. all offences under the Penal Code are required to be investigated, tried and otherwise dealt with according to the Code. Sections 28 and 29 of the Code deal with the Courts constituted under the Code by which the offences under the Penal Code and under any other law are to be tried. These sections govern every criminal proceedings both as regards the tribunal by which a crime is to be tried and as to the procedure to be followed. Sub-section (2) of Section 1, Criminal P.C. no doubt, provides that nothing in the Code shall affect any special law, in the absence of any specific provision to the contrary. But the existence of a special law by itself cannot be taken to exclude the operation of the Criminal Procedure Code. Unless the special law expressly or impliedly provides that certain offences shall be tried exclusively by Courts constituted under the Art, the jurisdiction of the ordinary Courts to try the offences under the Code cannot be said to have been excluded. The learned Sessions Judge has placed reliance on two decisions of the Allahabad High Court reported in-Kirpa Ram v. Ram Asrey : AIR1951All414 and-'Jaisri Tiwari v State : AIR1951All494 in which it has been held that the Panchayati Adalat established under the U.P. Panchayat Raj Act, 1947 has exclusive jurisdiction to try the offences mentioned in Section 52 of the Act. These decisions have no applicability here, because there is a material difference between the Uttar Pradesh Act and the Madhya Bharat Act. The difference lies in this that whereas in the Uttar Pradesh Act by Section 55, the jurisdiction of any other Court to take cognizance of any case which is cognizable under the Act by Panchayati Adalat is expressly excluded in the Madhya Bharat Act, there is no such provision. Again, under Section 56 of the U.P. Act a Magistrate is required to transfer the case to the Panchayati Adalat if it appears to him at any stage of proceedings in a criminal case that the case is triable by a Panchayati Adalat. In our Act the words used in Section 77 are:
Yadi aparadh sambandhi kisi abhiyoga men jo kisi Magistrate ke samane ho kisi samaya bhi yah malum ho ki is abhiyoga ki sunavi kisi Nyaya Panchayat ko karana chahiye to wah us abhiyoga ko turant saksham Nyaya Panchayat ke pas bhej dega. Jo abhiyoga ki sunavi arambha ho sakegi.
5. It will be seen that under this section it must appear to the Magistrate that the case should be tried by the Panchayati Adalat before it can be transferred to the Panchayat Court. It is not sufficient for the transfer of a case to the Panchayat Court that it is triable by that Court. The question whether any particular case if cognizable by a Panchayat Court, should or should not be tried by that Court has to be determined by the Magistrate on the facts and circumstances of that case. Thus under Section 77, Madhya Bharat Panchayat Vidhan, the Magistrate has been given the discretion to transfer a case to the Panchayat Courts provided of course it is cognizable by that Court under Section 75 of the Act. If, therefore, in the present case, the Magistrate instead of transferring the case to the Panchayat Court, tried it himself and found the applicants guilty under Section 323, I.P.C. it cannot be held that the trial and conviction of the applicants are Illegal.
6. For these reasons I reject the reference.