Bhim Sen v. the State of U.P

Judgment

Shivnandan S!iafrrid Ti,, Punjqb National Bahk l.Jd. Sinha J. March 15 (1955f As indicated above, in the present case the direction and control of the appellant and of the ministerial staif in charge of the Cash Department of the Bank was entirely vested in the Bank through its manager or other superior officer. We have therefore no hesitation in differing from the conclusion arrived at by the Appellate Tribunal and in holding that the appellant was an employee of the Bank. That being so, the Tribunal had the jurisdiction to make the directions it did in respect of the appellant. The respondent did not at any stage of the proceedings challenge· the orders of the Tribunal on its merits. That conclusion being reached, there is no difficulty in upholding the orders of the Tribunal in respect of the appellant, It is therefore not necessary to pronounce upon the other points raised by the parties. The appeal 1s accordingly allowed with costs throughout. BHIM SEN ti. Appeal allowed.

THE STATE OF U.P. [VIVIAN BosE, JAGANNADHADAs and SINHA JJ. J U. P. Panchayat Raj Act, 1947 (U. P. Act XXVI of 1947), ss. 49 (1)(2)(4), 52, 55-Rule 84 framed by Stat< Government-Thef' of the value of Rs. J..().0_ committed by three accused-One of the accused belonging to Madhya Pradesh State-Panchayat Ada/at constituted under the provisions of s. 49 of the Act and Rule 84 framed there· under to try the present case-Whether could be properly constituted -Rule 84-W hether Intra vires-/urisdiction of ordinary courts- JJ/hether excluded-Bar under s. 55---Scope of. Three accused were c.onvicted by a Magistrate under s. 379 of the Indian Penal Code of the offence of theft of the value of Rs. 3 and sentenced to a fine 0£ . Rs. 25 /- each. The question for determination was whether t~e case should have been tried by a Panchayat Ada:lat cortstituted under the U. P. PanchaYat Raj Act, 1947 and the Magistrate had no jurisdiction to try it. Two of the accused belonged to U.P. State and the third belonged to Madhya Pradesh State.

Section 52( I) of the Act provides that certain specified offences (including the offence of theft when the value of stolen property does S.C.R. not exceed Rs. 50 /') shall be cognizable by a Panchayat Adalat. Section 55 provides that no court shall take cognizance of any case which is cognizable under the Act by the Panchayat Adalat. Section 49 provides: "49(1) The Sarpanch shall, for the trial of every case, form a bench of five Panches from the panel referred to in s. 43. (2)

Every such bench shall include one Panch who resides in the area of the Gaon Sabha in which the complainant of a case resides and likewise one Panch in the area in which the accused resides and three Panches residing in the area of the Gaon Sabha in which neither party resides, provided that in police cases one Panch shall be such as may be residing in the Gaon Sabha in which the offence was committed, one Panch residing in the area of Gaon Sabha in which the accused resides and three Panches residing in the areas other than those mentioned above". Rule 84 framed by the State Government under s.

49(4) of the Act reads as follows :- "For the purposes of trial or decision of any case or proceeding parties of which are residents of different circles or different districts or any one of the parties iJ a resident of a place not governed by the Act, the prescribed authority having jurisdiction over the Panchayati Adalat in which a case or proceeding is instituted or transferred for disposal shall constitute a special bench consisting of Panches of the said Panchayati Adalat and if convenient and possible may include a Panch of the other circle and shall appoint one of them as Chairman of the bench unless the Sarpanch is a member of it". Held that inasmuch as in the present case one out of the accused belonged to Madhya Pradesh it was not possible to constitute a bench in strict compliance with s. 49(2) of the Act to try his case. Section 84 in so far as it relates to the constitution of a special bench where one of the parties belongs to a place outside the State Qf U. P. is ultra vires.

Hence no competent bench could be constituted under s. 49. of the Act for the trial of the pres~nt case in which there were three accused one of whom was a person belonging to a different State. Under the circumstances the jurisdiction of the ordinary courts was not excluded. Exclusion of jurisdiction of a court of general jurisdiction, can be brought about by the setting up of a court of limited jurisdiction, in respect of the limited field, only if the vesting and the exercise of that limited jurisdiction is clear and operative. The bar under s. 55 of the Act relates to the case as a whole arid has reference to the entire proceeding in respect of all the accused together. CruMtNAL APPELLATE JuRISDIGTION: Criminal Appeal No. 22 of 1954. Bhim Sen The State of U. P. "955 Bhim.Sen The State of U. P; [19551 Appeal under Article 134(1) (c) of the Constiruc tion from · the Judgment and - Order -dated the. .-27th October 1953 · of the Allahabad High Court in Criminal Reference No. 121 of 1953.

K. P. Gupta.and A.D. Mathur,' for the appellant. -K. B. Astliana ai).d ·c . .P. Lal, for the resp0ndertt. 1 1955. 'March' 15. The - Judgment -of the -Court wasdeliv~ed by jAGANNADHADAS' J.'-'This is an appeal ' by -leave granted . by the -High Court 'of ·Allahabad presumably· under artide 134( 1) ( c) ·of the Constitution. The facts are simple. Three persons · including, · the appellant were, at the -material time, pared porters af the railway station Manikpur in the district Bartda of· Uttar Pradesh. Qn the night 'of the 18th June, 1952, they we;e· fotinCl by two waichi'nen of the Watch 'and Ward· staff -attached to the railw_ay stati@, .cominitti1).g' theft of certain· packets of biscuits. by breaking open a rail- W?Y parcel containing those packets, which as parcel porters, - they · had occasion to handle.

First information of the same w:is lodged,_ before the ~u!J-I~spector, Railway Police, by one Ra!Il Prasad, Head Watchman_, The Raiiway Police. _filed the charge~;heet . under section- 379 of the . Indian Penal Code on· the 20th June, 1952, - The case was taken -cognizance of by the Railway· Magistrate, Manikpur. All the three accused plead~.d guilty: They _ were convieted by the · Magistrate on the; 15th' July, 1952, .and' sentencea to 7 a fine_ of Rs. 25 each. Against this convicti0n the .. present appellant, filed· a revision_. to the Sessions . , Judge of Banda. It is necessary at this stage to meRtion . .that . under the . U. P .. P.anchayat Raj . Act, .1947, . the . Panchayati Adalats in" U.P.. have, criminal- .jurisdiction " in certain matters'; The point taken •before the Ses- - sions T udge was that' by virtue of the said · Act, · the pres~nt '. case should _ have - been tried -•by -the' 'Panchayati Adil.lat' and that the Railway Magistrate had - no jurisdiction.

This contention was _ accepted by the learned Sessions JuClgc: 'He accorqirigly made a reference to the High Court for quashing - the conviction S.C.R. and sentence. It came before a Single Judge of the High Court who did not feel · quite satisfied that the Railway Magistrate had jurisdiction.· ·But · without deciding the question ' ohe way or the other, he declined to accept the reference ·on the · ground that the revisional jurisdiction of· the · High Court was discretionary. Somewhat · curiously however, the learned Judge · granted a certificate against his - own judgment that the case is a fit one forappeal to .the Supreme Court. If the learned 'Judge thought fit to grani: leave to appeal, he might well have himself decided ·the question· involved so that we should have had the benefit of his· consideration of the same.· -To d~cide the question of jurisdiction th~s raised it is necessary to, ,notice the scheme of the U.P. Panchayat, Raj A~t, 1917 (U.]J. A,ct XXVI of 1947)

(hereinafter referred to_ as the. Act) and a few · relevant sections. 9f the. sall1e. "It. -may be mentiOned' that the Act appears. to have , undergone some _ amendments in the ypr 1952 and . recently .in 1955. _ These .amendments have .no _application to the present ·case. ·Under the Act, . as it stood at· the time of i:he commission of the· o#ence _ and . the · conviction therefor, the scheme thereunder is as follows : Under 'section 3, the ·. State Government shall; . by : . · notification . in the official Gazette, establish . a Gaon Sabha for . every village or group of _villages. Under section· 42, the State Government . or . the . prescribed aµthority shall divide a disti;ict . in_to 'circles, each circle comprising as . many area~ · sµbject to. the . jµrisdiction of _ Gaon Sabha ·as mav .. be e;icpedient .. · Th~ .State Goverrµnent shall . also establish ... Panchayati .

Adalats for each such . circle, provided-that the areas. of· Gaon Sabhas within each circk ,shall,. as. fai: .a~- pos~ible~. be (ontig~ous.' ~ \Jnd~r section, 43,, eyery . paon Sabha. in . a ci_rcle . shall elect five ... aqults of. prescribed qualificatipn permanently residing within its ·jurisdiction to act· as. Pariches in the Pan.chayati Adalat of that circle. The Panches so elected.· by all _the Gaori Sabhas ·fil a circle shall form a pariel. · Under · section 44 all the Panches ·· elected unde{ sestion: 43 .. shall de~i: 'f~om ·~ong themselves • a person who is able to record proceedings and to act, -1955 Bhim Sen The State of U. P. Jagannadhadas .7- •955 Bhim Srn Thi State of U. P. Jagaaaadhaaas j. StJJIREME COURT REPORTS [1955] as Sarpanch of the Partehayati Adalat.

As will be seen from the subsequent sections the Panchayati Adalat has jurisdiction to deal with all disputes and cases, both civil and criminal, arising within its area but it is enough for the present case to notice only those portions which relate to criminal jurisdiction. Sectfon 52(1) provides that certain specified offences, if committed within the jurisdiction of a Panchayati Adalat (which in this context must be taken to tefer to local jurisdiction) shall be cognizable by such Panchayati Adalat. The clauses of sub-section ( 1) of section 52 specify the various classes of offences under the Indian Penal Code and under some other special and local Acts which are within the cognizance of the Panchayati Adalat. Section 379, Indian Penal Code, is one of the sections so enumerated and it is specifically provided that the jurisdiction of the Adalat in respect of this offence is only where the theft of the stolen property does not exceed Rs. 50.

Section 51(1) provides that notwithstanding anything contained in the Code of Criminal Procedure, 1898, every case instituted under the Act shall be instituted before the Sarpanch of the Panchayati Adalat of the circle in which the offence is committed. It is also provided under section 55 that no court shall take cognizance of any case which is cognizable under the Act by the Panchayati Adalat unless an order has been passed by a Sub-Divisional Magistrate under section 85. Section 85 authorises a Sub-Divisional Magistrate, on an application of a party or on his own moti9n, to cancel the jurisdiction of the Panchayati Adalat with regard to any pending case if there is an apprehension of miscarriage of justice. Section 49 provides the machinery for the trial of cases by the formation of benches to dea.J with the same. It is necessary to set out the whole of that section in so far as it relates to criminal cases and it is as follows : "49. (1)

The Sarpanch shall, for the trial of every case, form a bench of five Panches from the panel (the panel referred to in section 43 above noticed) ,provided that at least one of the Panches in the bench S.C.R. shall be a person who . is able to record evidence and proceedings. (2) Every such bench shall include one Panch who resides in the area of the Gaon Sabha in which the complainant of a case resides and likewise one Panch in the area m which the. accused resides and three Panches residing in the area of the Gaon Sabha in which neither party resides, provided that in police cases one Panch shall be such as may be residing in the Gaon Sabha in which the offence was committed, one Panch residing in the area of Gaon Sabha in which the accused resides and three Panches residing in the areas other than those mentioned above. (3) ............................................... . ( 4)

Notwithstanding anything contained in this ~ection, the State Government may, by rules, prescribe the constitution of special benches for determin.ing any dispute arising between any parties or Gaon Sabhas or different circles or for any other purpose''. One of the rules framed with reference to this subsection which 1s relevant for the present purpose 1s rule 84 and is as follows : "For the purposes of trial or decision of any case or proceeding parties of which are residents of different circles or different districts or any one of the parties is a resident of a place not governed by the Act, the pre~ribed authority having jurisdiction over the Panchayati Adalat in which a case or proceeding is instituted or transferred for disoosal shall constitute a special bench consisting of Panches of the said Panchayati Adalat and if convenient and possible may include a Panch of the other circle and shall appoint one of them as Chairman of the bench unless the Sarpanch is a member of it".

The question of jurisdiction arises with reference to the above provisions of the Act. The charge-sheet filed by the police shows that the theft of the property involved in the case is Rs. 3. There can also be no doubt that the offence has been. committed within the limits of Manikpur. It would appear, therefore, prima Bhim Sen The State of U. F. Jagannadhadas J. Bhim'Stn 717' "State of U. P. Jagannadhadas J. SUPREME COURT E.EPORTS [ 1;955] facie that .by virtue of sections 51 arid 52, the }?anchayati Adalat of Manikpur had jurisdicticm .~o try the case... If so, the jurisdiction . of the regular Magistrate would . appear .to qe barred urider section _55 .of the Act, since it is not . suggested that there · \:tali been any ord.er. under section 85. But there is. a sc\rious difficulty in the way of the e'ferci~e , of this . jurisdi,ction by the Adalat..

The jurisdiction of the Adalat to· try any criminal case has to be exercised by a bench of the Panches to be formed by the Sarpanch under section 49 of the Act. · The 'bench has to consist· of five Panches of whom one is to be of the Gaon Sabha ·of Manikpur (since the offence was committed in that place and this is . a police case) and another belonging to the Gaon Sabha of the accused and the other three from Gaon Sabhas . outside the above two. Where there is only one accused and that accused belongs to an .. area within Uttar Pradesh · for which a Gaon Sabha has been formed under the Act or where there are more than one accused all belonging to the area of the same Gaon Sabha, the constitution of a bench of the Panchayati Adalat for the trial of such a case presents no difficulty. But in the present case it is oh the record that one out of the three accused by name Tulsi belongs to Jubbalpore in Madhya Pradesh.

It was, therefore, not possible to constitute a bench in strict compliance with section 49(2) of the Act to try his case. Recourse had, ·therefore, to be had to section 49(4) and the rules framed thereunder. The relevant rule 84 (which has been quoted above) no doubt provides for the constitution of special benches to try cases where there are more than one accused who are residents of different areas. Now this rule in so far as it provides for cases wherein all ·the parties concerned are residents of Uttar Pradesh may be unexceptionable. But whether it is valid in so far as it provides for the exercise of jurisdiction in respect of a resident outside the State , may be open to argument · on more grounds than one. In the present case, it is sufficient to consider whether this portion of the rule is valid, withreference to section 49(4) under which it is S.C.R. framed. Section 49( 4) authorises the .

Government to frame rules for , the constitution · of special benches "for determining disputes between parties of different circles or Gaon Sabhas or for any other purpose". "Circles or Gaon Sabhas" mentioned herein has reference only to circles and Gaon . Sabhas constituted under the Act. This does not .authori~e the framing of a rule in so far as it relates to a person belonging to a place outside the State. Nor tan the phrase "for any other purpose" in sub-section ( 4) of section 49 whatever that may mean-be construed so widely as to authorise a rule affecting such. an. outsider, assuming without deciding, that a statutory provision · by a State Legislature can, directly or by delegation and in terms, validly provide for the exercise of .such jurisdiction by a Panchayati Adalat. We are clearly of the opinion that rule 84 in so far as it relates to the constitution of a special bench where one of the .parties belongs to a place outside . the State is ultra vires.

Hence no competent bench could be constituted under section 49 of the. Act for the trial of the present case in which there are three accused of whom one is a person belonging to a different State. Now, in these circumstances, it has to be considered whether the trial of this case by the ordinary criminal Court is barred. The bar of the jurisdiction of the ordinary criminal Court is brought about by section 55 of the Act. But it requires to be noticed that the bar which is brought about by the section, is a bar which relates to the case as a whole. Because, in terms, what it says is "no court shall take cognizance of any case which is cognizable under the Act by a Panchayati Adalat". Under section 2(a) of the Act a "case" is defined as meaning "criminal proceeding in respect of an offence triable by a Panchayati Adalat" and "Panchayati Adalat" is defined as "including a bench thereof".

It is clear, therefore, that this bar has reference to the entire proceeding, i.e., as involving all the accused together. Such a bar in respect of the entire case can be operative only where there is a valid machinery for the trial thereof. In the present case in which at least one of the accused Bhim Sm TM State of U. P. Jagannadhadas ]. BhiT!I Sen Thi Stale of u. P. Jagannadhadas J. Sl)PREME COURT REPORTS [1955] (though nor this very appellwt) is a person coming from an area outside the local extent of the Act, any bench of the Ada1at that can be valid! y formed thereunder 'Cannot try the three accused together a11d hence can have no jurisdiction over the whole case. The jurisdiction of the regular criminal court in respect of such a case cannot be taken away by the operation of section 55 of the Act. It is to be remembered that the jurisdiction of the criminal courts under section 5 of the Code of Criminal Procedure is comprehensive.

That section enjoins that all offences under the Indian Penal Code shall be investigated, enquired into, tried and otherwise dealt with "according to the provisions hereinafter contained". To the extent that no valid machinery is set up under the U.P. Panchayat Raj Act for the trial of any particular case, the jurisdiction of the ordinary criminal court under section 5, Code of Criminal Procedure cannot be held to have been excluded. Exclusion of jurisdiction of a court of general jurisdiction, can be brought about by the setting up of a court of limited jurisdiction, in respect of the limited field, only if the vesting and the exercise of that limited jurisdiction is clear and operative. Where, as in this case, there is no adequate machinery for the exercise of this jurisdiction in a specific case, we cannot hold that the exercise of jurisdiction in respect of such a case by the Court of general jurisdic· tion is illegal.

We are, therefore, of the opinion that the Railway Magistrate had the jurisdiction to try the case. The appeal is accordingly dismissed. Appeal dismissed.