http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6  

PETITIONER: BHIM SEN

       Vs.

RESPONDENT: THE STATE OF U. P.

DATE OF JUDGMENT: 15/03/1955

BENCH: JAGANNADHADAS, B. BENCH: JAGANNADHADAS, B. BOSE, VIVIAN SINHA, BHUVNESHWAR P.

CITATION:  1955 AIR  435            1955 SCR  (1)1444

ACT: U.   P.  Panchayat Raj Act, 1947 (U.  P. Act XXVI of  1947), ss. 49 (1)(2)(4), 52, 55-Rule 84 framed by State Government- Theft of the value of Rs. 3-0-0 committed by three  accused- One  of  the  accused belonging  to  Madhya  Pradesh  State- Panchayat  Adalat constituted under the provisions of s.  49 of the Act and Rule 84 framed thereunder to try the  present case-Whether could be properly constituted -Rule  84-Whether Intra   vires-Jurisdiction   of  ordinary   courts   Whether excluded-Bar under s. 55-Scope of.

HEADNOTE:  Three  accused were convicted 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 of Rs.  25/-  each. The  question for determination was whether the case  should have been tried by a Panchayat Adalat constituted 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(1) of the Act provides that  certain  specified offences  (including the offence of theft when the value  of stolen property does                                   1445 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6  

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  is 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 of U.  P.  is  ultra vires.  Hence no competent bench could be constituted  under s. 49 of the Act for the trial of the present 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 and has reference to the entire proceeding in  respect of all the accused together.

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION: Criminal Appeal No. 22  of 1954. 1446 Appeal under Article 134(1) (c) of the Constitution 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. Asthana and C. P. Lal, for the respondent. 1955.  March 15.  The Judgment of the Court was delivered by JAGANNADHADAS  J.-This is an appeal by leave granted by  the High  Court of Allahabad presumably under article  134(1)(c) of  the Constitution.  The facts are simple.  Three  persons including  the appellant were, at the material time,  parcel porters  at  the railway station Manikpur  in  the  district Banda  of  Uttar Pradesh.  On the night of  the  18th  June, 1952, they were found by two watchmen of the Watch and  Ward staff  attached to the railway station, committing theft  of certain  packets  of  biscuits by breaking  open  a  railway parcel  containing those packets, which as  parcel  porters, they had occasion to handle.  First information of the  same was lodged, before the Sub-Inspector, Railway Police, by one Ram  Prasad,  Head Watchman.  The Railway Police  filed  the charge-sheet  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 pleaded  guilty.  They were convicted by the  Magistrate  on

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6  

the 15th July, 1952, and sentenced to a fine of Rs. 25 each. Against  this  conviction  the  present  appellant  filed  a revision to the Sessions Judge of Banda.  It is necessary at this  stage  to mention that under the U. P.  Panchayat  Raj Act,  1947,  the Panchayati Adalats in U. P.  have  criminal jurisdiction in certain matters.  The point taken before the Sessions  Judge  was  that by virtue of the  said  Act,  the present case should have been tried by the Panchayati Adalat and  that the Railway Magistrate had no jurisdiction.   This contention was accepted by the ’learned Sessions Judge.   He accordingly made a reference to the High Court for  quashing the conviction 1447 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  one  way or the other, he declined to  accept  the reference on the ground that the revisional jurisdiction  of the High.  Court was J. discretionary.  Somewhat -’curiously however, the learned Judge granted a certificate against his own  judgment that the case is a fit one for appeal  to  the Supreme  Court.  If the learned Judge thought fit  to  grant 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  decide  the question of jurisdiction thus raised  it  is necessary  to notice the scheme of the U. P.  Panchayat  Raj Act, 1947 (U.P. Act XXVI of 1947) (here in after referred to as the Act) and a few relevant sections of the same.  It may be  mentioned  that the Act appears to have  undergone  some amendments  in  the year 1952 and recently in  1955.   These amendments  have no application to the present case.   Under the  Act, as it stood at the time of the commission  of  the offence- and the conviction there for, 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 authority  shall divide  a district into circles, each circle  comprising  as many areas subject to the jurisdiction of Gaon Sabhas as may be  expedient.   The State Government shall  also  establish Panchayati Adalats for each, such circle, provided that  the areas  of  Gaon Sabhas within each circle shall, as  far  as possible, be contiguous.  Under section 43, every Gaon Sabha in   a  circle  shall  elect  five  adults   of   prescribed qualification  permanently residing within its  jurisdiction to  act as Panches in the Panchayati Adalat of that  circle. The  Panches so elected by all the Gaon Sabhas in  a  circle shall  form  a  panel.  Under section  44  all  the  Panches elected under section 43 shall elect from among themselves a person who is able to record proceedings and to act, 185 1448 as Sarpanch of the Panchayati 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    Section  52(1)   provides that  certain  specified ;Offences if committed  within  the jurisdiction  of a Panchayati Adalat (which in this  context must  be  taken  to refer 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6  

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  not with  stand anything contained in the Code of Criminal  Pro- cedure,  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  851 authorises  a Sub-Divisional Magistrate, on an  -application of a party or on his own motion, 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 deal 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 1449 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 in which the accused resides and J. 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 section, the State  Government may, by rules, prescribe the  constitution of  special  benches for’ determining  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 is relevant for the present purpose is 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 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". 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6  

1450 facie  that by virtue of sections 51 and 52, the  Panchayati Adalat of Manikpur had jurisdiction to try the case.  If so, the  jurisdiction of the regular Magistrate would appear  to be  barred  under  section 55 of the Act,  since  it  is,not suggested  that there has been any order under  section  85. But there is a serious difficulty in the way of the exercise of this jurisdiction 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  on 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 unexception- able.  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, with reference to section 49(4) under which it is                             1451 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 authorise the framing of a rule in so far as it relates to a person belonging to a place outside the State.  Nor can  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.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6  

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 1452 (though not this very. appellant) is a person coming from an area outside the local extent of the Act, any -bench of  the Adalat  that can be validly formed there-. under cannot  try the   three   accused  together  and  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 no 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 jurisdiction 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. 1