Chet Ram Thakur, J.
1. This is a petition under Article 227 of the Constitution of India read with Section 561-A of the Code of Criminal Procedure with a prayer that the order and judgment of the learned District Magistrate, Kinnaur District at Kalpa, dated the 31st July, 1972, be quashed.
2. The present respondent had filed a petition under Section 488 of the Code of Criminal Procedure before the Nyaya Panchayat Kalpa on 31st December, 1970 fou maintenance to herself from the present petitioner in this Court on the allegations that according to the custom prevailing in their JJaqa she was a legally married wife of the petitioner and that he had cohabited with her on that right and as a result of that she also conceived a child. When the petitioner saw that the respondent had conceived he tried to get rid of her and somehow or other turned her away from his house on 24th December, 1970. It was on that ground that she laid the petition under Section 488 of the Code of Criminal Procedure before the Nyaya Panchayat, which had the jurisdiction under Sub-section (2) of Section 203 of the Himachal Pradesh Panchayati Raj Act, 1968, to take cognizance of such cases. The petitioner denied the allegations of marriage as also cohabitation with her and opposed the application for maintenance.
3. Since the case was pending before the Nyaya Panchayat for a pretty long time, therefore,, the respondent moved an application before the Sub-Divisional Judge for the transfer of the proceedings, which was accepted. In the meanwhile the Sub-Divisional Magistrate who had withdrawn the case from the file of the Nyaya Panchayat to his own, proceeded on leave and one Shri Shalindra Nigam took over from him as Sub-Divisional Officer, Kalpa. He was not invested with the criminal powers till the 5th February, 1972, and, therefore, the District Magistrate withdrew those proceedings from his file to his own. It appears that during the pendency of these proceedings the respondent gave birth to a child and thereupon the District Magistrate while proceeding with the case framed issued with regard to the marriage of the respondent with the petitioner, about the entitlement of the respondent to maintenance for herself; about the legitimacy of the child born to the respondent and the liability of the petitioner to maintain the child.
4. The learned District Magistrate held that the marriage between the parties was not proved, and that being so the respondent was not entitled to any maintenance. However, the learned District Magistrate held that though the child was the illegitimate child of the respondent, yet the petitioner was liable to maintain the child and he, therefore, fixed Rs. 50/- as the monthly maintenance allowance for the child from 1-8-1972 till the child attained majority. It was further ordered that this maintenance allowance shall be paid to the mother under whose guardianship the child was living. It is against this order that this petition had been filed.
5. I have heard the learned Counsel for the parties. The petition which was pending before the Nyaya Panchayat had been withdrawn by the Sub-Divisional Judge on an application made by the respondent purporting to be one under Section 526, Criminal Procedure Code. It would be pertinent to note at the very outset that this section has got no applicability to the transfer of cases from the Nyaya Panchayat by the District Magistrate or the Sub-Divisional Judge. Section 526 of the Code of Criminal Procedure applies to transfers of cases from the Criminal Courts by the High Court. The proceedings were pending before the Nyaya Panchayat and there is no provision in the H. P. Panchayati Raj Act which authorises either the District Magistrate or the Sub-Divisional Judge to transfer any such proceedings from the Nyaya Panchayat to its own file. Therefore, this jurisdiction exercised by the learned Sub-Divisional Judge was inherently wrong.
6. The learned Sub-Divisional Judge while accepting the application has observed that the counsel of the parties agreed that the proceedings may be transferred from the Nyaya Panchayat to the Court. It was on that agreement of the parties also that the learned Sub-Divisional Judge thought that he could withdraw the case from the Nyaya Panchayat. But it may be observed that the consent of the parties cannot confer any jurisdiction on the Court. Since the withdrawal or transfer of the case was illegal, therefore, the District Magistrate also could not take cognizance of the case which was exclusively triable by the Nyaya Panchayat and this withdrawal and transfer of the case from the file of the Nyaya Panchayat was wholly unwarranted.
7. The Sub-Divisional Judges or the Sub-Divisional Officers have, however, been given revisional powers under Section 238 of H. P. Panchayati Raj Act. Sub-section (1) makes provisions for revision from any order or decree passed by the Nyaya Panchayat in a case or suit. But in the instant case there is no order or decree passed so as to invoke the revisional jurisdiction of the Sub-Divisional Judge for that matter. Sub-section (2) says that if there has been a miscarriage of justice or if there is an apprehension of miscarriage of justice hi any case, suit or proceeding or the Nyaya Panchayat has exercised jurisdiction not vested in it by law, the Sub-Divisional Judge in respect of any case or any suit, and the Sub-Divisional Officer in respect of any proceedings under the Punjab Land Revenue Act, 1887, as in force in the transferred territory, and the Collector concerned hi respect of any proceedings under the Himachal Pradesh Land Revenue Act, 1953, may on the application of any party or on his own motion, at any time in a pending case, suit or proceeding as the case may be, and within 60 days from the date of decree or order, call for the record of the case, suit or proceeding, as the case may be, from the Nyaya Panchayat and for the reasons to be recorded in writing-
(a) cancel the jurisdiction of the Nyaya Panchayat with regard to any case, suit or proceeding; or
(b) quash or modify or remand any decree or order passed by the Nyaya Panchayat at any stage.
This sub-section also has got no applicability to the present proceedings. There was no miscarriage of justice apparent on the face of the record so as to give jurisdiction to the Sub-Divisional Judge to cancel the jurisdiction of the Nyaya Panchayat. Moreover, in my opinion, this Sub-section (2), as already stated, has got no applicability as it applies only to a case or a suit and not to the proceedings of the present type.
8. The submission made by the learned Counsel for the respondent is that Section 206 of the Himachal Pradesh Panchayati Raj Act, 1968, creates no bar for taking cognizance of any such petition or proceeding by any magistrate but this submission also is not correct, inasmuch as Section 206 talks of cognizance of a case or suit only. The proceedings under Section 488 do not either fall within the purview of a case or a suit as denned under the Act. 'Case' has been defined hi Section 3 (f) of the Act as meaning criminal proceedings hi respect of an offence triable by a Nyaya Panchayat. 'Suit' has been defined in Section 3 (dd) meaning a revenue or civil suit triable by a Nyaya Panchayat. Negligence to maintain a wife or a child is not an offence and an application to take action under Section 488, Criminal Procedure Code is, therefore, not a complaint under Section 4 (1) (h) of the Code. A person proceeded against under this section is, therefore, not an accused person. The proceedings under this section are in the nature of civil proceedings, although the proceedings are governed by the provisions of the Criminal Procedure Code. The section only provides a speedy and a summary remedy against starvation of a deserted wife or child. Therefore, hi these circumstances it cannot be said that Section 206 will cover the case. For that matter the District Magistrate had exercised jurisdiction which was not vested in him by law and in such a case the High Court hi exercise of its power of superintendence can quash the order.
9. Further, the learned District Magistrate has framed an issue in the case which did not arise out of the pleadings of the parties. At the time of making the application by the respondent for maintenance for herself the child was still in the womb and the learned District Magistrate has exceeded the powers inasmuch as he framed an issue without the pleadings and also he gave findings with regard to the legitimacy or illegitimacy of the child which he could not do in these summary proceedings, especially when he has held that the respondent herself was not the legally married wife of the petitioner. Unless there was a specific prayer for claiming maintenance for the child, the District Magistrate was not authorized to grant any maintenance. The learned Counsel for the respondent contends that even an oral submission could be made by a woman for maintenance and that there was no need to file a formal application. But I do not see if such a submission has got any force. The learned Counsel for the respondent has also invited my attention to Mst. Biro v. Behari Lai (AIR 1958 J & R 47) : (1968 Cri LJ 1481) where it was held: 'Where it is stated by the wife in hes application that she has a son and a daughter by the non-applicant living and that is admitted on all sides the necessary facts which would entitle the children to maintenance have been pleaded and proved and, therefore, there is no ground for saying that as the mother has not claimed any maintenance for the children no order for their maintenance should be passed.'
10. The facts of the case are distinguishable inasmuch as in the aforesaid case the mother had already pleaded that she had a son and a daughter by the non-applicant living and that fact was not denied by the husband and, therefore, it was on that account that this principle was laid down. But in the instant case before us at the time when the application for maintenance was filed by the respondent, the child had not seen the light of the day. Moreover, the very marriage and any sexual intercourse by the petitioner with the respondent was also denied. Hence the District Magistrate had no jurisdiction to pass the impugned order.
11. In view of the above there could not be any warrant for grant of maintenance allowance. The District Magistrate, therefore, had exercised a jurisdiction not vested in him and, therefore,in exercise of the supervisory power of this Court, the order is quashed.