1. Mina Ram petitioner was convicted by Magistrate, 1st Class, Kandaghat under Section 323, Indian Penal Code, and sentenced to pay a fine of Rs. 50/-or in default to undergo one month's rigorous imprisonment. His petition for revision was referred bythe learned Sessions Judge with the recommendation that the conviction be set aside as illegal because of non-compliance with the mandatory provisions of Section 67 of the Pepsu Panchayat Raj Act, 2008Bk. As an Adalat was in existence and was competent to try the aforesaid case, the question agitated was whether the jurisdiction of the Magistrate was ousted. This petition came up before Chopra J. and by an order dated 9-6-1955 it has been referred to a larger Bench.
2. In orcler to decide the question which has been referred it is necessary to examine the scheme of the Pepsu Panchayat Raj Act, 2008 Bk, (hereinafter called the Act). According to Section 54 of the Act, the Government or the prescribed authority may divide any district into circles, each circle comprising one or more Sabha areas, and establish a Panchayati Adalat for each circle. It is next provided by Section 55 that the Panchayati Adalats may be classified as class I and class II Adalat for the purpose of discharging judicial functions. Section 65 gives jurisdiction to the Adalat to try the offences mentioned in the Schedules as well as in the section itself. It is common ground that an offence under Section 323, Indian Penal Code, would be within the jurisdiction of the Adalat. Section 67 provides as follows :
'67. (1) Any Magistrate before whom a complaint or report by the police of any offence triable by any Adalat is lodged shall transfer the proceedings to the Adalat concerned.
(2) No Magistrate shall upon his own knowledge or suspicion take cognizance of any offence which is triable by an Adalat after such Adalat has been constituted.'
Section 70 provides how a complaint is to be filed before the Adalat. The complaint can he made orally or in writing and the complainant has to pay fee of Re, 1/-. If the complaint is made orally, the person authorised to receive the complaint under Sub-section (1) of Section 70 shall record such particulars as may be described. Section 71 gives the procedure which the Adalat has to follow after the institution of a complaint. Section 73 enjoins that the Adalat shall dispose of the cases promptly. If possible, the case has to be tried and decision given on the date on which the accused appears before it. Section 74 is important inasmuch as the powers of the Adalat are restricted in the matter of punishment. Adalat Class I may, on conviction, sentence the accused to a fine not exceeding rupees two hundred or double the value of the damage or loss caused by the act of the accused, whichever is greater.
Adalat class II can sentence the accused to fine not exceeding rupees one hundred etc, The Adalat is also empowered to release the accused instead of punishing him after due admonition, or require him to execute, within such time as the Adalat may fix, a bond with or without sureties, of an amount not exceeding rupees two hundred, binding himself that he will not commit any offence for a period not exceeding twelve months, or where the accused is under eighteen years of age, the Adalat can require his father or his guardian to execute, within such time as it may fix, a bond with or without sureties, of an amount not exceeding rupees two hundred, binding himself to prevent such offender from committing any offence for a period not exceeding twelve months. There are other provisions in Section 74 which need not he noticed. According to Section 75, if a fine is imposed the Adalat may order the whole or any portion of the fine recovered to be applied -
(a) in, defraying expenses properly incurred in the case by the complainant;
(b) for compensating any material damage or low caused by the offence committed.
If the Adalat is satisfied that the case is false and frivolous or vexatious, it may, for reasons to be recorded, direct compensation of such amount not exceeding rupees one hundred to be paid by complainant or informant to the accused. Section 76 says that no conviction shall be deemed to be a previous conviction for the purposes of Section 75 of the Penal Code or Section 562 or Section 565, Code of Criminal Procedure, nor shall it disqualify any person from exercising any electoral right or from being elected or appointed to or holding any office. The appellate forum is constituted by Section 77 of the Act; any person aggrieved by a final order made by an Adalat, can appeal to a Magistrate of the 1st Class.
The order of the Magistrate or officer on appeal has been given finality by Sub-section (5) of Section 77. It is thus clear that the entire machinery which has been provided by the Act is quite different, not only with regard to the procedure but even with regard to the punishment, from the procedure contained in the Code of Criminal Procedure and from the punishment provided for by the Indian Penal Code in the sense that the Adalat is not competent to inflict a sentence of imprisonment. It is in the light of the scheme of the Act that the provisions of Section 67 have to be examined. Sub-section (1) of Section 67 makes it obligatory on the Magistrate before whom a com- plaint or report by the police of any offence triable y any Adalat is lodged to transfer the proceedings to the Adalat concerned-It is true that there is a certain amount of difference between the phraseology used in Sub-section (1) and Sub-section (2) of Section 67. Sub-section (2) completely debars the Magistrate from taking cognizance of any offence which is triable by an Adalat upon his own knowledge or suspicion, whereas such cognizance is not barred by the provisions of Sub-section (1). But when the legislature has constituted a new class of Courts and has prescribed a special procedure and conferred jurisdiction on those Courts, it is difficult to see how any concurrent jurisdiction could have been left in the Court of the Magistrate when the same is being conferred on a different Court, namely, the Adalat.
It is also true, as has been stated by Maxwell in the book on the Interpretation of Statutes, that there is a general presumption against an intention to disturb the established state of the law, or to interfere with the vested rights of the subject, and that a strong leaning now exists against construing a statute so as to oust or restrict the jurisdiction of a superior Court, although this feeling may owe its origin to the pecuniary interests of the Judges in former times, when their emoluments depended mainly on fees. But at the same time it is added that the supposition is that the legislature would not make any important innovation without a very explicit expression of its intention. If the intention is explicit and clear, then no question of applying this presumption will arise.
It is further note-worthy that the language employed in Section 67(1) of the Act is mandatory in its terms and employs the word 'shall'. It has been laid down by their Lordships of the Supreme Court that the use of the word 'shall' is not conclusive and an enactment in form mandatory may be merely directory: vide Hari Vishnu v. Ahmad Ishaque, (S) AIR 1955 SC 233 (A), but it is the duty of the Court to try to get at the real intention of the legislature by care-Fully attending to the whole scope of the statute to be construed as has been enjoined in H. N. Rishbud v. State of Delhi, (S) AIR 1955 SC 198 (B). The entire scheme of the Act which has been already examined shows that the provisions of Section 67(1) are obligatory. If any analogy can be drawn, it would be useful to refer to the provisions of Section 191 of the Code of Criminal Procedure.
While interpreting the phraseology employed in that section it has been held that non-compliance with its provisions is not a mere irregularity curable under Section 537 but is an illegality and renders the proceedings null and void: vide Mahammad Sadiq v. Emperor, AIR 1938 Lah 19 (C), and other cases given in note 5 in Chitaley's Commentaries on the Code of Criminal Procedure, Volume I. It would be pointless to refer to certain decisions which have been cited before us, namely, Harbans Singh v. Sita Devi, AIR 1958 Pat. 113 (D), and Subba Rao v. Narsiah, AIR 1940 Mad 495 (E), as they related to different statutes the language of which was not in pari material with the statute which is being considered in the present case.
3. For all these reasons, it must be held that the Magistrate had no jurisdiction to try the case and was bound to transfer the same to an Adalat of competent jurisdiction.
4. The recommendation of the learned SessionsJudge is accepted and the conviction of the petitioneris set aside.