Himachal Pradesh High Court
Virender Kumar And Another vs State Of H.P & Anr on 28 November, 2023
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MMO No. 775 of 2019 Reserved on: 02.11.2023 Date of Decision: 28.11.2023 .
Virender Kumar and another ... Petitioners
Versus
State of H.P & anr. ....Respondents
Coram
Hon'ble Mr. Justice Rakesh Kainthla, Judge.
of Whether approved for reporting?1 Yes For the Petitioners : Mr. Virender Katoch, Advocate.
For Respondent No.1
rt : Mr. R.P. Singh, Deputy Advocate
General.
For Respondent No.2 : Mr. Lovneesh Kanwar, Sr.
Advocate, with Mr. Tek Chand,
Advocate.
Rakesh Kainthla, Judge,
The present petition is directed against the order dated 13.08.2019, passed by learned Additional Sessions Judge-
II, Kangra at Dharamshala, H.P. in Criminal Revision No.16- D/X/2017 vide which, the revision filed by respondent No.2 (revisionist before learned Additional Sessions Judge-II) was allowed and learned JMIC-II, Dehra was directed to recall the case file from Gram Panchayat, Kaulpur and deal with the same as per the law.
1Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 29/11/2023 20:31:51 :::CIS 22. Subsequently, the word 'deal with' was substituted by the words 'try and decide' vide order dated 02.09.2019.
3. It appears that an application was filed by the .
revisionist before learned ACJM, Dehra under Section 156(3) of Cr.P.C., which was sent by learned Judicial Magistrate, 1st Class-
II (JMFC-II), Dehra for investigation. The police conducted the investigation and submitted a charge sheet for the commission of of offences punishable under Sections 341, 504, 506, and 114 read with Section 34 of the IPC. The learned JMFC-II issued the rt notice to the accused. When the accused appeared before the learned JMFC-II, the matter was sent to Gram Panchayat, Kaulpur for final disposal of the case.
4. Being aggrieved from the order passed by learned JMFC-II, the revisionist filed a revision before learned Additional Sessions Judge-II, Kangra at Dharamshala. Learned Additional Sessions Judge-II, Kangra at Dharamshala held that the offences were cognizable by Gram Panchayat, Kaulapur, however, accused no. 1 was Vice-Pardhan of Gram Panchayat, Kaulpur. Learned JMFC-II did not notice this fact and the order passed by learned JMFC-II is wrong. Hence, the learned JMFC-
II, Dehra was directed to recall the case file and try and decide the same as per the law.
::: Downloaded on - 29/11/2023 20:31:51 :::CIS 35. Being aggrieved from the order passed by learned JMFC-II, Dehra, the present petition has been filed asserting that only Gram Panchayat was competent to try the matter as per the Panchayati Raj Act, 1994. A right of appeal was taken .
away from the accused which has been provided under Section 67 of the Panchayati Raj Act. There is a provision for the transfer of cases from one Gram Panchayat to another under Section 43 of of the Panchayati Raj Act, 1994 and the case could not have been recalled to be tried by learned JMFC-II. Therefore, it was prayed rt that the order passed by learned Additional Sessions Judge-II, Kangra at Dharamshala be set aside.
6. I have heard Mr Vijender Katoch, learned counsel for the petitioners (original accused), Mr R.P. Singh, learned Deputy Advocate General for respondent no. 1/State and Mr Lovneesh Kanwar, learned Senior Counsel assisted by Mr. Tek Chand, learned counsel for respondent no. 2 (original revisionist/complainant).
7. Mr. Vijender Katoch, learned counsel for the petitioners submitted that learned Additional Sessions Judge-II erred in directing the learned JMFC-II to try the case. The offences were cognizable by Gram Panchayat and it was not permissible for learned Additional Sessions Judge-II to direct ::: Downloaded on - 29/11/2023 20:31:51 :::CIS 4 that the case be decided by learned JMFC-II. Even if it was accepted that respondent no. 1 was Vice-Pardhan of Gram Panchayat, the remedy of the revisionist/complainant was filing an application for transfer of one case to another Gram .
Panchayat and the case could not have been tried by learned JMFC-II. The trial by learned JMFC-II takes away a valuable right of appeal granted to the accused under Section 67 of the of H.P. Panchayati Raj Act. Therefore, he prayed that the present petition be allowed and the order passed by learned Additional rt Sessions Judge-II be set aside.
8. Mr. R.P. Singh, learned Deputy Advocate General for respondent no.1/State supported the order passed by learned Additional Sessions Judge-II and submitted that no interference is required with the same.
9. Mr. Lovneesh Kanwar, learned Senior Counsel submitted that the accused no. 1 was Vice Pardhan of Gram Panchayat and he was incompetent to participate in the proceedings. H.P. Panchayati Raj Act confers a power upon the Gram Panchayat to refer the matter to Judicial Magistrate, First Class, in case, it is unable to try the same due to lack of quorum.
Therefore, the plea taken by the petitioner that a right of appeal ::: Downloaded on - 29/11/2023 20:31:51 :::CIS 5 would be taken away is not correct; hence, he prayed that the present petition be dismissed.
10. I have given considerable thought to the rival .
submissions at the bar and have gone through the records carefully.
11. It is undisputed that the offences alleged against the accused are triable by Gram Panchayat.
of
12. Section 34 of H.P. Panchayati Raj Act, 1994 provides that no Court shall take cognizance of a case, suit or proceeding rt which is cognizable under this Act by a Gram Panchayat unless an order has been passed under Section 67 of the Act. This Court held in Smt. Padmo & others versus Surat Ram, 2003 CRI. L. J. 237, that the intention of the legislature under Section 34 of the H.P. Panchayati Raj Act is to confer exclusive jurisdiction upon the Gram Panchayat concerned. It was observed:
"10. Section 34 lays down a bar on the Courts to take cognizance of any case, suit or proceeding which is cognizable by a Gram panchayat. Since the application for maintenance under Section 125, Cr.P.C. is to be heard and decided by Gram Panchayat as per sub-section (2) of Section 32, the Judicial Magistrate Ist Class is required to forward such application, if filed in his Court, to the concerned Gram Panchayat. The intention of the legislature to give exclusive jurisdiction to the Gram Panchayats in respect of offences cognizable by it and application for maintenance under Section 125, Cr.P.C. is further fortified from Section 35 which provides for transfer of criminal proceedings pending before a ::: Downloaded on - 29/11/2023 20:31:51 :::CIS 6 Magistrate at any stage, if it appears that the case is triable by a Gram Panchayat and on transfer, the Gram Panchayat is required to try the case de novo. Sections 34 and 35 are as under :
"34. No Court shall take cognizance of any case, suit .
or proceeding which is cognizable under this Act by a Gram Panchayat established for the area to which the case, suit or proceeding relates unless an order has been passed under Section 67. "35. If, at any stage of the proceedings in a criminal case pending before a Magistrate, it appears that of the case is triable by a Gram Panchayat, he shall at once transfer the case to that Gram Panchayat which shall try the case de novo."
13. rt This position was reiterated in Shakuntala Devi and others versus State of Himachal Pradesh & another, 2015 (3) Shim.
LC 1255, wherein it was held:
"The order impugned before this Court has been rendered on 15.06.2015 by the learned Additional Chief Judicial Magistrate 1st Class, Court No.1, Amb, District Una, H.P., on an application preferred before it by the accused/petitioners herein for transferring the case for trial to the Gram Panchayat concerned, the latter having jurisdiction vested in it by Section 34 of the Himachal Pradesh Panchayati Raj Act, 1994 (hereinafter referred to the "Act") to take cognizance thereof and try the accused for the offences constituted against them in the notice of accusation. The provisions of Section 34 of the Himachal Pradesh Panchayati Raj Act, 1994 are extracted hereinafter:
"34. No cognizance by Courts.- No Court shall take cognizance of any case, suit or proceeding which is cognisable under this Act by a Gram Panchayat established for the area to which the case, suit or proceeding relates unless an order has been passed under Section 67."::: Downloaded on - 29/11/2023 20:31:51 :::CIS 7
2. The aforesaid provisions of Section 34 of the Himachal Pradesh Panchayati Raj Act explicitly display the fact that except the remedy of appeal to the convict/accused against a decision by the Bench of the Gram Panchayat concerned on conclusion of a trial against the convict/accused for his having committed offences .
cognisable by a Panchayat as enumerated in Schedule-III of the Act, any cognizance thereon by the Court of the Judicial Magistrate concerned is barred. A perusal of Schedule III of the Act aforesaid underscores the factum that the offences, amongst other offences enumerated therein, as allegedly committed by the accused under Sections 447, 323, 506 read with Section 34 of the Indian of Penal Code stand depicted therein. Obviously, with a depiction therein of the offences constituted against the accused/applicant/petitioner under Section 447, 323, 506 read with Section 34 of the IPC, hence vest jurisdictional rt competence in the Gram Panchayat concerned to try them, besides concomitantly, the bar contemplated in Section 34 of the Himachal Pradesh Panchayati Raj Act, 1994 against any cognizance thereon being taken by the Criminal Court of competent jurisdiction is aroused, as such, the application as laid by the petitioners/applicants/accused before the Additional Chief Judicial Magistrate concerned necessitated its being allowed. The learned Court below having declined relief to the petitioners/accused on the score of notice of accusation put to the accused/petitioners omitting to reveal whether the offences allegedly committed by the accused/petitioners under Section 506 of the IPC, fall in Part-I or Part-II thereof, as such, it proceeded to hold that Section 506 (II) while being not enumerated in Schedule III, is neither cognisable by nor triable by the Gram Panchayat concerned, hence, further proceeded to not afford relief to the applicants/petitioners herein. The said manner of appreciation of material on record by the learned trial Court below suffers from gross absurdity or perversity which has occasioned a substantial miscarriage of justice. The apt and relevant material of which the learned Court below was seized of, was the notice of accusation, with a manifest depiction therein of an accusation of the applicants/accused/petitioners herein ::: Downloaded on - 29/11/2023 20:31:51 :::CIS 8 having committed offences under Section 506 of the IPC, as such, with Section 506 of the IPC standing enumeration in Schedule-III of the Panchayati Raj Act qua whose cognizance the jurisdiction of the Judicial Magistrate concerned stands barred by Section 34 of the Act, it was improper for the learned Court below to .
untenably read Part-II into Section 506 of the IPC, whereas, the notice of accusation put to the accused, palpably manifested that the offence allegedly committed by the accused was under Section 506 alone. The aforesaid manner of misreading of the notice of accusation by the learned trial Magistrate is ridden with the vice of gross misappreciation of material on record of tantamounting to the commission of gross illegality and legal impropriety."
14. Thus, the jurisdiction of learned JMFC-II was barred rt in respect of the case, which was cognizable by the Gram Panchayat concerned.
15. It was submitted that Section 30 creates a bar for a 'Panch' to take part in any case, suit or proceeding in which he is personally interested. Since the accused no. 1 was Vice Pardhan of Gram Panchayat; therefore, there was a bar for him to participate in the proceedings. Reference was made to Section 54(1) which empowers Pardhan or Up Pardhan to appoint a Bench of Gram Panchayat consisting of three 'Panchas' and refer the same to the Gram Panchayat. It was submitted based on these two provisions that Up Pardhan has the power to constitute a Bench and since he was the accused he could constitute a Bench favourable to him. Therefore, learned ::: Downloaded on - 29/11/2023 20:31:51 :::CIS 9 Additional Sessions Judge-II has rightly asked the learned JMFC-II, Dehra, Kangra at Dharamshala to try and decide the matter. This submission is not acceptable. When H.P. Panchayati Raj Act, 1994 bars a 'Panch' from participating in the .
proceedings in which, he is personally interested, the bar will extend to the constitution of the Bench as well. Therefore, the apprehension that the accused no. 1 will constitute a Bench of favourable to him is not acceptable.
16. Reference was also made to Section 30(2) which rt empowers a Gram Panchayat to refer a matter to Judicial Magistrate, 1st Class in case, the quorum falls below the prescribed due to the disability of any of the 'Panch'. No advantage can be derived from this Section because this power is vested exclusively with the Gram Panchayat and it is for the Gram Panchayat to make a reference in case, there is no quorum for hearing a case. This power cannot be exercised by a Court assuming that no quorum will remain due to the disability of accused No.1.
17. It was rightly submitted that a power has been conferred upon learned JMFC-II to transfer a case from one Court to another under Section 43 of the H.P. Panchayati Raj Act.
If the complainant/revisionist was aggrieved by the proceedings ::: Downloaded on - 29/11/2023 20:31:51 :::CIS 10 being conducted before Gram Panchayat, she has a right to approach learned JMFC-II for transfer of a case to some other Gram Panchayat. This power could not have been exercised by learned Additional Sessions Judge-II, that too, in a revision, .
where no such prayer was made.
18. Learned Additional Sessions Judge-II stated that the learned JMFC-II had not verified the fact that accused no.1 is an of Up-Pardhan. Even if it was so, the learned JMFC-II was bound to send the case to the Gram Panchayat and could not have retained rt the same in view of the exclusive jurisdiction vested in the Gram Panchayat. Similarly, learned Additional Sessions Judge-II could not have conferred jurisdiction upon a Court, which it did not possess simply because one of the accused was an Up-Pardhan of the Gram Panchayat.
19. Thus, the learned Additional Sessions Judge-II exercised a jurisdiction not vested in him and erred in directing JMFC-II, Dehra to recall the case and try and decide the same as per the law. Hence, the order passed by learned Additional Sessions Judge-II, Kangra at Dharamshala is not sustainable.
Final Order:
20. In view of the above, the present petition is allowed and the order passed by learned Additional Sessions Judge-II, ::: Downloaded on - 29/11/2023 20:31:51 :::CIS 11 Kangra at Dharamshala dated 13.08.2019 is quashed and the order passed by learned JMFC-II, Dehra dated 01.02.2016 is restored. Pending miscellaneous applications, if any, also stand disposed of.
.
(Rakesh Kainthla) Judge 28th November, 2023 of (saurav pathania) rt ::: Downloaded on - 29/11/2023 20:31:51 :::CIS