R.B. Mehta, J.
1. This is a criminal reference by the learned Sessions Judge Bhavnagar for quashing an order made by the learned Judicial Magistrate First Class Vallabhipur Umrala. It relates to the jurisdiction of a Nyaya Panchayat constituted under the Bombay Village Panchayats Act 1958.
The matter arises this way the complainant one Chhagan Raghav filed a complaint against one Bharwad Pola Ghugha and 2 others on charges of mischief under Section 426 and criminal trespass under Section 447 read with Section 34 of the Indian Penal Code. It appears that the offences were alleged to have been committed in the village of Chogath within the jurisdiction of the learned Judicial Magistrate Vallabhipur Umrala. The learned Magistrate having entertained the complaint issued summons to the accused. Thereupon the accused made an application before the learned Judicial Magistrate contending that the learned Magistrate had no jurisdiction to entertain the complaint as the Nyaya Panchayat Chogath had the said jurisdiction. The learned Judicial Magistrate upheld the contention advanced by the accused and made an order that he had no jurisdiction to entertain the complaint and that the complaint be returned to the complainant for proper presentation. The learned Magistrate held that the jurisdiction for these offences was vested in the relevant Nyaya Panchayat. Against this order of the learned Judicial Magistrate the complainant made a revision application to the learned Sessions Judge Bhavnagar. The learned Sessions Judge Bhavnagar has made this reference to this Court expressing the view that the order passed by the learned Magistrate is erroneous and that the said order be set aside and that the learned Magistrate be directed to take cognizance of the said offences and try the same.
To decide this reference it is necessary to refer to certain relevant provisions of the Bombay Village Panchayats Act 1958 Under Section 75 there is a list of offences which are made cognizable by Nyaya Panchayats. Section 75 provides as follows:
A Nyaya Panchayat shall take cognizance of-and try all or any of the following offences (including the abetment thereof or attempt to commit any such offences) subject to the provisions of Sub-section (5) of Section 64(a) Under the Indian Penal Code.x x x x x xMischief when the loss or damage caused does not Section.exceed Rs. 20/- in value. 426Criminal Trespass. 447.
2. In this case the complainant has in his own application stated that the damage that has been caused is to the extent of Rs. 50/-. Therefore the Nyaya Panchayat under provisions of Section 75 of the said Act obviously would be incompetent to try the offence of mischief under Section 426 where the loss or damage exceeds 20/- in value as in this case. Coming to the second charge which is the subject-matter of the complaint viz. Section 447 read with Section 34 I.P.C. it is true that a criminal trespass under Section 447 I.P.C. is included in the list of offences under Section 75 of the Act. At the same time in the instant case the charge is not simply under Section 447 I.P.C. but it is under Section 447 read with Section 34 I.P.C. which means that the charge involves that there was common intention between all the accused to commit offence of criminal trespass. Now looking to the language of Section 75 of the Act which has been quoted above what the section says is that the Nyaya Panchayat shall take cognizance of and try all or any of the offences which have been enumerated under the said section including the abetment or the attempt to commit any such offence. Now it cannot be said that a charge of an offence read with Section 34 I.P.C. is a charge either of abetment or attempt to commit the offence. A charge under Section 447 read with Section 34 I.P.C. is not a charge simpliciter under Section 447. Neither is it a charge of abetment of the offence nor a charge of attempt to commit any such offence. Under the circumstances if the charge of criminal trespass is under Section 447 read with Section 34 I.P.C. it is not covered by the language of Section 75 of the Act. In these circumstances the Nyaya Panchayats would not be competent to take cognizance of the offence of criminal trespass under Section 447 read with Section 34 I.P.C.
Upto now I have assumed that there is in existence a Nyaya Panchayat constituted under the provisions of the Bombay Village Panchayats Act 1958 There are however observations in the reference which clearly show that the Nyaya Panchayat was not in existence when the complaint was filed before the learned Magistrate. Therefore I presume that the relevant Nyaya Panchayat is not in existence and has not been constituted so as to enable the Nyaya Panchayat to discharge its duties under the Bombay Village Panchayats Act 1958 Now in this connection it is necessary to refer to Section 63 of the said Act which provides as follows:
There shall be a Nyaya Panchayat for the administration of civil and criminal justice in a group of villages not being less than five in number as the State Government may by notification in the Official Gazette determine A Nyaya Panchayat shall be known by such name as may be specified in the notification.
Provided that the villages comprising a group shall as far as possible be contiguous. Section 64 of the Act provides as follows:
(1) The Nyaya Panchayat shall consist of one person elected by each panchayat in the manner hereinafter provided.
(2) Every Panchayat shall as soon as may be after the election of the Sarpanch and Upa-Sarapanch elect oat of the members of the Gram Sabha of village in the manner prescribed one person for the purpose of constituting Nyaya Panchayat: Provided that the Sarpanch and Upa-Sarpanch of the panchayat shall not be eligible for being chosen as and for being a member of the Nyaya Panchayat.
(3) The Nyaya Panchayat constituted as aforesaid may exercise all or any of the powers mentioned in Sub-sections (1) and(2) of Section 73 and Section 75 and the State Government may by general or special order specify in this behalf.x x x x x x x x
In other words the Nyaya Panchayat has first to come into existence and that it comes into existence after the same has been established under Section 63 and it has been constituted by election as provided under Section 64 Sub-sections (1) and (2). After the Nyaya Panchayat is constituted as aforesaid by election under the provisions of Sub-section (3) of Section 64 the State Government has by general or special order to specify as to which of the powers under Sub-sections (1) and (2) of Section 73 and Section 75 of the Act are to be exercised by the Nyaya Panchayat. Now we are not concerned in this case with Sub-sections (1) and (2) of Section 73. We are concerned in this case only with the powers under Section 75. It is therefore clear that the authority of the Nyaya Panchayat to discharge its duties can only begin after the relevant powers have been conferred upon them either by a general or special order of the State Government under Sub-section (3) of Section 64. Now in this case the Nyaya Panchayat has not been constituted. It has not come into existence at all. Naturally the powers are conferred on the Nyaya Panchayats either by special or general order under Sub-section (3) of Section 64. Obviously therefore this is a case where no Nyaya Panchayat is in existence and no jurisdiction has been conferred on the relevant Nyaya Panchayat. Therefore there was no Nyaya Panchayat in existenae which could exercise jurisdiction in regard to the offences under consideration.
3. In the circumstances the order of the learned Magistrate returning the complaint to the complainant was patently erroneous and must be set aside. The order of the 'I learned Magistrate is erroneous on both the grounds. It is erroneous on the ground' that the offence under Section 426 I.P.C. which involves loss of more than Rs. 20/- as it is in this case is not triable by the Nyaya Panchayat. Further the offence under Section 447 read with Section 34 is also not triable as observed by me earlier by the Nyaya Panchayat. Therefore even if the Nyaya Panchayat was constituted and was in existence, the Nyaya Panchayat would not have jurisdiction to try this offence. The second ground is that the Nyaya Panchayat has no existence as it has not been constituted. So on that ground also as the Nyaya Panchayat was not in existence at all this was not a case where the Nyaya Panchayat could be said to have any jurisdiction to entertain the offences in question. In the circumstances on either of the grounds taken even individually the order of the learned Magistrate is wrong and must therefore be quashed. The learned Magistrate is directed to take the complaint on his file and proceed according to law. The reference is accepted.