1. This petition under Article 227 of the Constitution of India is directed against a decision, of the Additional Sessions Judge, Ujjain, setting aside the convictions and sentences under Sections 504 and 506, I. P. C. of the opponents Gumansigh and Kaluram and acquitting them of the offences.
The opponents were convicted by the Nyaya Panchayat of Makdon on a complaint filed by the petitioner Ambaram under Section 75 of the Madhya Bharat Panchayat Vidhan, 1949. That section and Section 76 confer jurisdiction on Nyaya Panchayats to try certain offences under the Penal Code and under other Acts, limiting the power of the Nyaya Panchayat in the matter of punishment to a fine not exceeding Rs. 100/-. A Nyaya Panchayat under the Act is not competent to sentence any person convicted for any of the offences specified in Section 75 to imprisonment.
A Nyaya Panchayat cannot also try persons mentioned in Section 80 and, under Section 83 it cannot entertain any complaint with regard to the commission of an offence after the expiry of a period of one year from the date of the commission thereof. Under Section 89 a decision of the Nyaya Panchayat in a criminal case is revisable by a Sessions Judge and the decision of the Sessions Judge is final.
2. Mr. Pande, learned counsel appearing for the petitioner assailed the decision of the Additional Sessions Judge, Ujjain, on three grounds. First it was said that Sections 75, 76 and 77 of the Panchayat Vidhan, which was not reserved for the consideration of the President and which had not leceived his assent, being repugnant to the Code of Criminal Procedure were void under Article 254 of the Constitution and that, therefore, the Nyaya Panchayat had no jurisdiction to entertain the petitioner's complaint.
Secondly it was urged that for the same Section 89 of the Act was also repugnant and the learned Additional Sessions Judge had no jurisdiction to entertain the revision petition filed by the opponents. Thirdly it was contended that under Section 89 it was the Sessions Judge and not an Additional Sessions Judge who was competent to hear and determine a revision petition against a decision of the Nyaya Panchayat.
3. In my opinion, this petition must be dismissed without considering the validity of the petitioner's contention as regards the jurisdiction or the Nyaya Panchayat to entertain the complaint and of the Additional Sessions Judge to hear the revision petition because of the alleged repugnancy between Sections 75, 76, 77 and 89 of the Panchayat Vidhan ana of the provisions of the Code of Criminal Procedure.
The petitioner himself filed a complaint against the opponents before the Nyaya Panchayat. When he did that he must be assumed to have accepted the position that the Nyaya Panchayat was legally clothed with the authority to try his complaint. The petitioner who presented the complaint before the Nyaya Panchayat under Section 75 could not clearly at the same time say that the provision which conferred jurisdiction on the Nyaya Panchayat being repugnant to the Code of Criminal Procedure is void.
On the maxim 'allegans contraria non est audiendus' (a person making contradictory statements is not to be heard), the petitioner cannot now be heard to repudiate the very jurisdiction which he invoked. Again before the Additional Sessions Judge the petitioner did not raise the point that as Section 89 of the Panchayat Vidhan was repugnant to Section 438, Criminal P. C., the Sessions Judge had no jurisdiction to entertain the revision petition preferred by the accused persons.
At that time it never occurred to the petitioner that the Additional Sessions Judge had no jurisdiction. He took the chance of success before the Sessions Court and it was not until he had failed that he elected to move this Court under Article 227 of the Constitution. If the revision petition had been dismissed, we would not have heard anything further about the jurisdiction of the Nyaya Panchayat to entertain the complaint and of the Sessions Judge to hear and decide the revision petition.
Learned counsel for the applicant admitted that the petitioner never raised the point as to the jurisdiction of the Additional Sessions Judge when he heard the revision petition. He however, argued that if the Nyaya Panchayat and the Sessions Judge had in fact no jurisdiction under the Act, the petitioner's conduct in invoking the jurisdiction of the Nyaya Panchayat and in omitting to raise before the Sessions Judge the point as to the jurisdiction, could not confer any jurisdiction on these authorities and that he could, therefore, raise the point for the first time in this Court.
It is true that if the Nyaya Panchayat and the Sessions Judge had no jurisdiction under the Act, the petitioner's conduct cannot validate the proceedings held by them. But the question is not whether the proceedings are validated by the petitioner's consent or conduct, but it is whether a party invoking this Court's special jurisdiction under Articles 226 and 227 can be allowed to raise a question of jurisdiction when no objection on that score had been taken before the tribunal whose order is being challenged. Several English authorities have laid down the proposition that in the matter of issue of a writ of Certiorari, the High Court exercises a special jurisdiction and not ordinary jurisdiction and that a question of jurisdiction cannot be allowed to be raised on a petition when no objection to the jurisdiction had been taken before the tribunal whose order or proceedings are being challenged.
In the case of the 'King v. Williams Ex parte Philips', (1914) 1 KB 608 (A), where a man applied for a writ of certiorari to quash an order made by Justices on the ground that one of the Justices was an interested party, it was held that the applicant was not entitled to the writ 'ex de-bito justitiae' because knowing the disqualification he had chosen to stand by during the hearing before the Justice without taking any objection. Channell J., pointed out:--
'No objection was taken to the jurisdiction of the Court below at the hearing before that Court; that being so, it is the rule of this Court not to grant a writ of certiorari except upon an affidavit which negatives knowledge on the part of the applicant when he was before the Court below of the facts on which he bases his objection. That rule is established on good grounds. It applies equally whether the objection is on grounds which make the act of the justices voidable or void'.
He then observed at page 614:--
'A party may by his conduct preclude himself from claiming the writ ex debito justitiae, no matter whether the proceedings which he seeks to quash are void or voidable. If they are void, it is true that no conduct of his will validate them; but such considerations do not affect the principles on which the Court acts in granting or refusing the writ of certiorari.
This special remedy will not be granted ex debito justitiae to a person who fails to state in his evidence on moving for the rule nisi that at the time of the proceedings impugned he was unaware of the facts on which he relies to impugn them. By failing so to do a party grieved precludes himself from the right to have the writ ex debito justitiae and reduces his position to that of one of the public having no particular Interest in the matter. To such a one the granting of the writ is discretionary.'
This case and other English cases in the same line have been followed by many High Courts in India while exercising the jurisdiction under Articles 226 and 227 of the Constitution of India. In --'Gandhinagar Motor Transport Society v. State of Bombay', AIR 1954 Bom 202 (E), an order passed by the Bombay Government in an appeal from a decision of the State Transport Authority was challenged on the ground that the Government had no jurisdiction to sit in appeal over the decision of the State Transport Authority.
The petitioner in that case did not raise the point as to the jurisdiction of the Government when the Government heard the matter. A Division Bench of the Bombay High Court presided by the learned Chief Justice following the rule laid down in (1914) 1 KB 608 (A); held that before a question of jurisdiction of a tribunal could be allowed to be raised on a petition under Articles 226 and 227 of the Constitution, objection to the jurisdiction must be taken before the tribunal whose order is being challenged.
A similar view has been taken in -- 'Mannarghat Union Motor Services Ltd. v. Regional Transport Authority, Malabar', AIR 1953 Mad 59 (C). That was a case where the jurisdiction of the Regional Transport Authority was challenged before the High Court in a petition under Articles 226 and 227 of the Constitution and the petitioner had failed to object to the jurisdiction before the Regional Transport Authority.
It was held that the petitioner submitted to the jurisdiction of the Regional Transport Authority and took the chance of getting a decision in his favour, he could not when the decision went against him question the jurisdiction of the tribunal before the High Court and that he had by his conduct precluded himself from objecting to. the jurisdiction whether the objection was based on a pure point of law or based on facts which were or should have been within his knowledge during the proceedings before the tribunal.
The rule laid down in (1914) 1 KB 608 (A), was also followed in some pre-Constitution cases (see 'Adiraju Mallikarjana Rao v. Somavaram Co-operative Society', AIR 1938 Mad 69 (D); and 'Latchmanan chettiar v. Corporation of Madras', AIR 1927 Mad 130 (FB) (E). I see no reason why in this particular case the salutary rule laid down in (1914) 1 KB 608 (A), should not be given effect to while exercising this Court's jurisdiction under Articles 226 and 227 of the Constitution which is not an ordinary jurisdiction but a special jurisdiction.
In my opinion, the petitioner has precluded himself by his conduct from objecting to the jurisdiction of the Nyaya Panchayat to try the coin-plaint preferred by him and of the Sessions Judge to hear the revision, petition.
4. It was then urged that under Section 89 a Sessions Judge alone was competent to entertain and determine a revision petition against a decision of the Nyaya Panchayat and that, therefore, Shri Manzar Ali, who was an Additional Sessions Judge at Ujjain, had no jurisdiction to hear the revision petition. This objection must also be rejected.
The whole scheme of the , Madhya Bharat Panchayat Vidhan and of the provisions of Chapter VII in particular is that in matters of civil, revenue and criminal disputes, the Nyaya Panchayat exercises its powers as a Court of law and that it is to the Court concerned and not to the individual Judge who may preside in or constitute the Court that revisional jurisdiction is given under Section 89.
That being so, the expression Sessions Judge occurring in Section 89 must be taken as including an Additional Sessions Judge. In my opinion, an Additional Sessions Judge is competent to entertain and decide a revision petition under Section 89 of the Act,
5. In the result, this petition fails and is rejected.
6. I agree.