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Nyaya Panchayat Palog Vs. Ghanu Ram - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtHimachal Pradesh High Court
Decided On
Case NumberCivil Writ Petn. No. 5 of 1961
Judge
Reported inAIR1964HP2,1964CriLJ34
ActsHimachal Pradesh Panchayat Raj Act, 1953 - Sections 2, 57, 91 and 93; ;Indian Penal Code (IPC) - Section 174
AppellantNyaya Panchayat Palog
RespondentGhanu Ram
Appellant Advocate F.R. Gupta, Adv.
Respondent Advocate K.C. Pandit, Govt. Adv. and; Prithvi Raj, Adv.
DispositionPetition dismissed
Excerpt:
- .....the himachal pradesh panchayat raj act no. 6 of 1953, hereinafter to be referred as 'the act', the nyaya panchayat did not have the power to impose a fine of more than rs. 25/- for an offence under section 174, i. p. c., and that the nyaya panchayat should have filed a complaint and not taken cognizance of the offence.he accordingly accepted the application in revision and set aside the order of the nyaya panchayat. the nyaya panchayat has felt aggrieved by the aforesaid order and has filed the .present petition on the following grounds: (a) that the tehsildar arki was invested with first class magisterial powers and was competent to entertain the application in revision, (b) that the magistrate first class solan was not a sub-divisional judge as contemplated by section 2 (e) and section.....
Judgment:
ORDER

C.B. Capoor, J.C.

1. This petition under Articles 226 and 227 of the Constitution of India has been filed by the Nyaya Panchayat of village Palog Tehsil Arki district Mahasu through the Sarpanch Shri Mansha Ram and arises out of the following facts:

2. A complaint for offences under Secs. 406, 417 and 426, I. P. C., was filed against the respondent in the aforesaid Panchayat. He did not appear in response to the summons issued to him by the Panchayat which initiated a proceeding against him for an offence under Section 174, I. P. C., found him guilty of that offence and sentenced him to pay a fine of Rs. 80/-. The respondent filed an application in revision against the aforesaid order in the Court of Magistrate first class Solan. The learned Magistrate was of the opinion that in view of Section 91 of the Himachal Pradesh Panchayat Raj Act No. 6 of 1953, hereinafter to be referred as 'the Act', the Nyaya Panchayat did not have the power to impose a fine of more than Rs. 25/- for an offence under Section 174, I. P. C., and that the Nyaya Panchayat should have filed a complaint and not taken cognizance of the offence.

He accordingly accepted the application in revision and set aside the order of the Nyaya Panchayat. The Nyaya Panchayat has felt aggrieved by the aforesaid order and has filed the .present petition on the following grounds: (a) that the Tehsildar Arki was invested with first class Magisterial powers and was competent to entertain the application in revision, (b) that the Magistrate first class Solan was not a Sub-Divisional Judge as contemplated by Section 2 (e) and Section 93 of the Act and was not competent to entertain the application in revision, (c) that Section 91 of the Act did not have any application when a person figuring as an accused before a Nyaya Panchayat wilfully omits to appear before it and (d) that no notice of the application in revision was issued to the petitioner.

3. The petition is opposed by the respondent and the grounds urged are that the Nyaya Panchayat has no locus standi to maintain the petition, that the Magistrate first class Solan was quite competent to entertain the application in revision and was quite correct in holding that the Nyaya Panchayat did not have the power to impose a fins in excess of Rs. 25/- and that it was not intentionally that he failed to appear before the Nyaya Panchayat rather he was sick and had sent an intimation for being exempted from attendance in Court and as such he was not liable to be convicted for the offence under Section 174, I. P. C.

4. During the course of argument a question arose as to whether the Nyaya Panchayat could be the judge in its own cause and take cognizance of an offence under Section 174, I. P. C., alleged to have been committed with respect to itself and argument has been heard on that question also.

5. The following questions arise for determination :

(1) Whether the petitioner is entitled to maintainthe petition?

(2) Whether it was incumbent upon the Magistratefirst class Solan to issue notice of the application in revision filed by the respondent to thepetitioner?

(3) Whether the Magistrate first class Solan wascompetent to entertain the application in revision?

(4) Whether the provisions of Section 91 of the Act are attracted to an offence under Section 174, I. P. C. committed by a person who figures as an accused before the Nyaya Panchayat?

(5) Whether the taking of cognizance by the petitioner of an offence under Section 174, I. P. C., was a violation of the principles of natural justice and can the order of conviction and sentence made by it be allowed to stand?

FINDINGS :

6. Question Mo. 1: Since the petitioner was a party to the application in revision filed by the respondent it was within its rights to move the present petition if it thought that the order made by the revisional Court was in excess of its jurisdiction. The question is accordingly answered in the affirmative.

7. Question No. 2 : Since the petitioner was a party to the application in revision, notice of the application should have been issued to it but the mere omission to do so cannot be a ground for the quashing of the order of the learned Magistrate first class Solan.

8. Question No. 3 : Palog is in Tehsil Arki and it is not disputed that at the material date Tehsildar Arki was invested with first class magisterial powers. The contention advanced on behalf of the petitioner is that the Magistrate first class Arki was the Sub-Divisional judge and it was he who was competent to entertain the application in revision and the Magistrate first class Solan exceeded his jurisdiction in entertaining the application. According to Section 93 of the Act a revision from any order or decree passed by a Bench or a Full Bench of the Nyaya Panchayat in a case or suit lies to the Sub-Divisional judge, Collector or District Magistrate or Sub-Divisional judge with reference to a Gram Sabha, Gram Panchayat Nyaya Fanchayat, Tehsil Panchayat or Zilla Panchayat means a Collector, District Magistrate or Magistrate first class or Sub-Judge of the district or the Sub-Division, as the case may be, in which such sabha or Panchayat is constituted; vide Section 2 (e) of the Act.

The definition is not a very happily worded one and it were much better if the words 'Collector', 'District Magistrate' and 'Sub-Divisional Judge' had been defined separately. The definition of the Sub-Divisional Judge may be extracted from the aforesaid definition to be as below:

Sub-Divisional Judge with reference to a Gram Sabha ..... or Zilla Panchayat means Magistratefirst class or Sub-Judge of the district or the Subdivision.

Arki is not a Sub-Division and it has not been shown on behalf of the petitioner that when first class magisterial powers were conferred upon the Tehsildar Arki he was designated as a Magistrate first class of the district and I am clear that the Magistrate first class Arki was not a Sub-Divisional judge and ex hypothesi was incompetent to entertain an application in revision against an order of the petitioner. Solan is also not a Sub-Division and it has been contended on behalf of the petitioner that the Magistrate first class Solan was not competent to entertain an application in revision against an order of the petitioner. In answer to the aforesaid contention it has been urged onbehalf of the respondent that the Magistrate first class Solan has been notified to be the Magistrate of the districtand as such he was competent to act and discharge the functions of a Sub-Divisional Judge.

The learned counsel for the respondent was afforded an opportunity to file a copy of such a notification. Hehas, however, not filed it so far. Thus on the materialon record it is not possible to hold one way or the otheras to whether the Magistrate first class Solan is competentto entertain an application in revision against an ordermade by the Nyaya Panchayat of an area comprised inTehsil Arki. It is, however, clear that the Magistrate firstclass Arki is not competent to entertain such an application in revision. The question is answered as above.

9. Question No. 4: The material portion of S. 91 of the Act reads as below:

'If any person who is summoned by a Nyaya Panchayat by a written order to appear to give evidence or to produce any document before it, wilfully disobeys such summons or notice or order, the Nyaya Panchayat may make a complaint to the Magistrate having jurisdiction and the said person shall be punishable with fine which may extend to twenty-five rupees.'

10. It will have been noticed that the aforesaid provision of law is not applicable to a person who figures as an accused in a case before the Nyaya Panchayat and is confined to such persons only who are required by an order in writing to appear to give evidence or to produce, any document. The learned Magistrate who entertained the application in revision was thus in error in holding that the failure on the part of the respondent to appear before the petitioner in response to summons was covered by Section 91 of the Act. The question is answered in the negative.

11. Question No. 5 . A reference to the relevant provisions of the Act will indicate as below:

(a) A Nyaya Panchayat has the power to take cognizance of an offence mentioned in Schedule I or declared by State Government to be cognizable by a Nyaya Panchayat if committed within the jurisdiction of a Nyaya Panchayat vide Section 57.

(b) No Court can take cognizance of any case or suitwhich is cognizable under the Act by a Nyaya Panchayatvide Section 60.''

(c) The Nyaya Panchayat is to follow the procedure prescribed by or under the Act. The Code of Civil Procedure, the Indian Evidence Act, the Code of Criminal Procedure and the Indian Limitation Act do not apply to any suit, case or proceeding in a Nyaya Panchayat except as provided in the Act or as may be prescribed, vide subsection (4) of Section 85.

(d) If an accused fails to appear after summons has been served upon him the Nyaya Panchayat is empowered to hear and decide the case in his absence, vide Sub-section (1) of Section 89.

(e) A Nyaya Panchayat may, if it considers the evidence of, or the production of a document by, any person necessary in a suit, case or proceeding issue and causa to be served in the prescribed manner a summons on such person to compel his attendance or to produce or causa the production of such document and such person shall be bound to comply with the direction contained in the summons, vide Section 90.

(f) If a person is summoned by a Nyaya Panchayat by a written order to appear to give evidence or to produce any document before it and such person disobeys tha summons, notice or order the Nyaya Panchayat has the power to make a complaint against him to a Magistrate having jurisdiction vide Section 91.

(g) There is no specific provision empowering the Nyaya Panchayat to take any action except to proceed to hear the case ex parte against a person who figures as an accused in a case before it if such an accused wilfully fails to appear before it.

12. The relevant portion of Section 174, I. P. C., runs as below:

'Whoever, being legally bound to attend in person ..... at a certain place and time in obedience toa summons, notice or order or proclamation proceeding from any public servant to issue the same intentionally omits to attend at that place or time ..... shall be punished with ..... or with both.'

13. The word 'whoever' as used in the aforesaid section is wide enough to cover an accu'sed as well as a witness. So far as the failure to attend on the part of a witness is concerned, provision has been made in Section 91 of the Act. The precise question for consideration is if the Nyaya Panchayat can take cognizance of wilful non-appearance of a person figuring as an accused in a case before it.

14. The aforesaid section has been mentioned in Schedule 1 to the Act and it has been contended on behalf of the petitioner that a Nyaya Panchayat has the exclusive jurisdiction to take cognizance of a case under Section 174, I. P. C., and that the petitioner was perfectly competent to initiate a proceeding against the respondent for an offence under that section. On the face of it the contention is forceful but a closer scrutiny will reveal that it will be a violation of the principles of natural justice if a Nyaya Panchayat were to take cognizance of an offence under Section 174, I. P. C. committed with respect to itself by an accused person.

15. One of the well-established principles of natural justice is that a person or authority cannot be a judge in his or its own cause. The maxim of law is 'nemo debet esse judex in propria causa' which literally means that no one shall be judge in his own cause. There are, however, certain exceptions engrafted to the aforesaid principle of natural justice.

16. Even though the provisions of the Criminal Procedure Code are not applicable to a case or proceeding under the Act reference may usefully be made to those provisions. Section 487, Cr. P. C., runs as below:

'(1) Except as provided in Sections 480, 485 and 485-A, no Judge of a Criminal Court or Magistrate, other than a Judge of a High Court, shall try any person for any offence referred to in Section 195, when such offence is committed before himself or in contempt of his authority or is brought under his notice as such Judge or Magistrate in the course of a Judicial proceeding.'

'(2) Nothing in Section 476 or Section 482 shall prevent a Magistrate empowered to commit to the Court of Session or High Court from himself committing any case to such Court.'

17. Section 480 does not govern an offence under Section 174, I. P. C. It provides for offences described inSections 175, 178, 179, 180 and 228, I. P. C. when such offences are committed in the view or presence of any civil, criminal or revenue Court.

18. Section 485 provides for imprisonment or committal of person refusing to answer or produce document. According to Section 485-A if any witness being summoned to appear before a Criminal Court is legally bound to appear at a certain place and time in obedience to the summons, and without just excuse refuses and neglects to attend at that place or time ..... and the Courtbefore which the witness is to appear is satisfied that it is expedient in the interests of justice that such witness should be tried summarily the Court may take cognizance of the offence and after giving the offender an opportunity of showing cause why he should not be punished underthis section, sentence him to fine not exceeding one hundred rupees.

19. Section 174, I. P. C., is one of the sections mentioned in Section 195, Cr. P. C. It would thus appearthat asserting to the provisions of the Criminal ProcedureCode a Judge of a Criminal Court has no power to punish a person figuring as an accused before him if such person wilfully fails to appear before him in response to a summons or warrant issued against him. A Judge of a Criminal Court has, however, power to take cognizance of theoffence if a witness who is legally bound to appear before him wilfully fails to appear in spite of being served with summons or notice. Adverting to the provisions of the Act one would find that a Nyaya Panchayat cannot take cognizance of wilful failure of a witness to appear before it to give evidence and it is a matter requiring serious consideration if it should be held to have such a power in the case of an accused person particularly when it hasalso the power, unlike the other Criminal Courts of theland, except when a proceeding under Section 512, Cr. P. C., has teen drawn up, to try an accused in absentia. If a person who figures as. an accused before a Nyaya Panchayat stoes not want to defend himself he need not appear in response to the summons and it will be within the powers af the Nyaya Panchayat to proceed ex parte and convict and punish him if the evidence produced on behalf of the complainant so justifies.

20. If the intention of the Legislature had been that a Nyaya Panchayat should proceed under Section 174, I. P. C., against an accused person who fails to appear before it a specific provision would have been made empowering the Nyaya Panchayat to take cognizance of the wilful non-appearance of an accused in response to thesummons issued to him just as a specific provision was made with regard to the wilful failure of a witness to appear to give evidence or to produce a document vide Section 91. I am, therefore, led to the conclusion that the legislature did not contemplate that a Nyaya Panchayatshould proceed under Section 174, I. P. C., against anaccused person who fails to appear before it.

21. On behalf of the Nyaya Panchayat it has been contended that the Bench of the Nyaya Panchayat before which the criminal case against the respondent was pending did not take cognizance of the offfence under Section 174, I. P. C., against the respondent rather the cognizance of the said offence was taken by a different Bench. Although the aforesaid statement of fact is not borne out by the petition under consideration yet even if it be assumed that it was so the case of the petitioner will not be furthered. The decision of a Bench of the Nyaya Panchayatwill in the eye of law be a decision of the Nyaya Panchayat. For the disposal of work different Benches are constituted by the Chief Justice of a High Court but the decision of such Benches is nontheless a decision of the High Court.

Similarly although a Sarpanch and in his absence the Naib-Sarpanch or any other Panch approved by the Sarpanch to act in this behalf is empowered to form Benches for the trial of cases etc. such Benches have the same judicial powers as under the Act are exercisabis by the Nyaya Panchayat. In the eye of law there is no distinction between a Bench of a Nyaya Panchayat and the Nyaya Panchayat and a decision of a Bench is that of a Nyaya Panchayat. Contempt of a Bench of the Nyaya Panchayat is contempt of the Nyaya Panchayat itself. Thus the mere fact that cognizance of the offence under Section 174, I. P., C., alleged to have been committed by the respondent was taken by a Bench of the Nyaya Panchayat different from the one before which the case against the respondent was pending as contended for on behalf of the petitioner would not alter the legal position. During my experience as a judicial officer 1 have not come across a single case in which a civil Court may have initiated a proceeding under Section 174, I. P. C., against a defendant on his failure to attend the Court in obedience to a summons duly served. The civil Court has the power to proceed ex parte and it does so. Under the Act, as has already been seen, the Nyaya Panchayat has been empowered to proceed ex parte even in a criminal case and it is shocking to one's sense of justice and fair play to find that the petitioner has chosen to take cognizance of an offence under Section 174, I. P. C., on the failure of the respondent to appear in a case before it.

22. In fine, I hold (1) that under the Act it was not intended that a Nyaya Panchayat should have the power to take cognizance of an offence under Section 174, I. P. C., by a person who figures as an accused in a case before it and wilfully fails to appear in response to the summons issued and duly served upon him and (2) that though Section 57 of the Act read with Schedule I appended thereto empowers a Nyaya Panchayat to take cognizance of an offence under Section 174, I. P. C., the exercise of such a power will be a violation of the well established principle of natural justice 'nemo debet esse judex in propria causa' and to that extent Section 57 deserves to be struck down. The order of conviction and sentence recorded by the petitioner against the respondent cannot, therefore, be allowed to stand even if the Magistrate first class Solan did not have the power to entertain the application in revision.

23. The petition, therefore, fails and is herebyrejected. In the peculiar circumstances of the case noorder is made as to costs.


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