Punjab-Haryana High Court
Manjit Kaur And Another vs State Of Punjab And Others on 7 November, 2012
Author: Paramjeet Singh
Bench: Paramjeet Singh
CRWP No. 1843 of 2012 1
IN THE HIGH COURT OF PUNJAB AND HARYANAAT
CHANDIGARH
CR.W.P. No. 1843 of 2012 (O&M)
Date of Decision: November 07, 2012
Manjit Kaur and another
... Petitioners
Versus
State of Punjab and others
... Respondents
CORAM: HON'BLE MR. JUSTICE PARAMJEET SINGH
1) Whether Reporters of the local papers may be allowed to see
the judgment ?.
2) To be referred to the Reporters or not ?.
3) Whether the judgment should be reported in the Digest ?
Present: Mr. D.S. Pheruman, Advocate,
for the petitioners.
Paramjeet Singh, J.
The instant criminal writ petition has been filed under Articles 226/227 read with Article 21 of the Constitution of India for direction to the respondent-authorities not to arrest the petitioners in view of the provisions of the Punjab Panchayati Raj Act, 1994 (hereinafter referred to as the "Act 1994") as the offence under Section 420 of the Indian Penal Code registered against the petitioners, in a case FIR No. 17 dated 03.04.2012, registered at Police Station Kathu Nangal, Tehsil and District Amritsar is triable under the Act 1994.
CRWP No. 1843 of 2012 2
Brief facts of the case are that the petitioners have cheated the complainant's son on the assurance that he would be sent to America and on that pretext the petitioners have received Rs.30 lacs from the complainant. The petitioners failed to honour the promise and issued a cheque to the complainant, which was dishonoured. They had earlier approached this Court under Section 438 of the Code of Criminal Procedure in this very FIR. The said petition i.e. CRM M-12763 of 2012 was dismissed by this Court by passing a speaking order on 03.05.2012. Against the said order, the petitioners approached Hon'ble Supreme Court and their Special Leave to Appeal (Crl.) No. 4932 of 2012 was also dismissed on 20.07.2012. Now, the petitioners have approached this Court by way of present criminal writ petition.
I have heard learned counsel for the petitioners. This is a common practice in the State of Punjab that agents like the petitioners are fleecing the innocent villagers by promising to send them abroad and are extracting money from them. In this manner, the petitioners have cheated the complainant's son.
Learned counsel for the petitioners contends that the offence is triable by the Gram Panchayat under the Act 1994 it being a special Act. He further contends that in this case no arrest and investigation can be carried out by the police since the offence is triable by the Gram Panchayat.
Before proceeding to consider the above contention, it would be appropriate to reproduce the relevant provisions of the Code of CRWP No. 1843 of 2012 3 Criminal Procedure and Act 1994.
Sections 2(c), (n), 4 and 5 of the Code of Criminal Procedure read as under:-
"2. Definitions - In this Code, unless the context otherwise requires-
(c) "cognizable offence" means an offence for which, and "cognizable case" means a case in which, a police officer may, in accordance with the First Schedule or under any other law for the time being in force, arrest without warrant;
(n) "Offence" means any act or omission made punishable by any law for the time being in force and includes any act in respect of which a complaint may be made under section 20 of the Cattle-trespass Act, 1871 (1 of 1871);
"4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.
(2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the CRWP No. 1843 of 2012 4 manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.
5. Saving - Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force."
Section 2(zze) of the Punjab Panchayati Raj Act, 1994 reads as under:-
"2(zze) the expressions "offence", "non-bailable offence", "cognizable offence", "complaint", "officer- in-charge of a police station" and "police station" have the same meanings as in section 2 of the Code of Criminal Procedure, 1973."
The offence in question is under Section 420 IPC which is cognizable and non-bailable. As per Section 4 of the Code, all the offences under the Indian Penal Code are to be investigated, inquired into and tried in accordance with law. In view of this, I am not inclined to accept the contention of the learned counsel for the petitioners that investigation of such offence is not to be carried out by the police. Learned counsel for the petitioners further contended that in view of Section 4(2) read with Section 5 of the Cr.P.C., the provisions of the Code will not affect the rights under the Act 1994, which is a special Act. According to the learned counsel all CRWP No. 1843 of 2012 5 the offences under any other law including the offences under IPC shall not be investigated by the police. This contention of the learned counsel for the petitioners is not sustainable. Section 4(2) of the Code refers to "all the offences under any other law" meaning thereby the offences other than those under IPC are to be taken into consideration and only those offences can be dealt with by the Panchayat straightway. The learned counsel for the petitioners failed to point out any provision from which it could be inferred that in the offence triable by the Panchayat, investigation and arrest is not to be carried out.
Learned counsel for the petitioners further contends that Gram Panchayat has power and jurisdiction over criminal offences. He further contends that in such cases no report under Section 173 Cr.P.C. is to be submitted. The contention of the learned counsel for the petitioners is not based on the provisions of law, and as such, is not sustainable. It would be appropriate to refer to Sections 44, 46 and 47 of the Act 1994, which read as under:-
"44. Powers and jurisdiction of Gram Panchayat over criminal offences - (1) Gram Panchayat shall exercise powers and shall have jurisdiction over matters laid down in Schedule II.
(2) For the purpose of deciding whether an offence falls within the jurisdiction of a Gram Panchayat, the provisions of sections 178 to 181 of the Code of Criminal Procedure, 1973 shall apply.CRWP No. 1843 of 2012 6
(3) A Gram Panchayat shall be deemed to be criminal court when trying criminal cases.
46. Exclusion of certain cases - (1) Subject to the provisions of sub-section (3), no Gram Panchayat shall take cognizance of any offence under the Indian Penal Code,1860, in which either complainant or the accused is a public servant.
(2) When information relating to the commission of a cognizable offence triable by a Gram Panchayat has been given to an officer incharge of a police station, he shall forthwith send a copy of the First Information Report, to the Gram Panchayat competent to try such an offence and such Gram Panchayat shall not proceed to try any complaint relating to the same facts nor shall it issue any summons in the matter, until the officer has intimated in writing that the investigation has been concluded:
Provided that such an officer shall send the information to the Gram Panchayat after the conclusion of the investigation.
(3) No criminal cases shall be heard, by any Gram panchayat when criminal case on substantially the same facts against the same person has been heard and finally decided by the competent court or Gram Panchayat or is CRWP No. 1843 of 2012 7 pending therein, or before it.
47. Cognizance of criminal cases - (1) A criminal case before a Gram Panchayat shall be instituted on a complaint in writing and on payment of fee prescribed in Schedule III by presenting it in person to the Sarpanch, and in his absence, to any Panch or by sending it by registered post to the Gram Panchayat:
Provided that if the court fee stamp is not available at the place where the Gram Panchayat ordinarily sits or at the place from where the complaint is sent an equivalent amount may be paid in cash or sent to the Gram Panchayat by money order.
(2) The particulars of the complaint shall be recorded by the Secretary of the Gram Panchayat in the register prescribed for the purpose.
(3) Notwithstanding anything contained in sub-
section (1), a Gram Panchayat shall be competent to take cognizance suo motu of cases falling under Sections 160, 228, 264,277, 289, 290, 294, 510 of the Indian Penal Code, 1860 and under Sections 3 and 4 of the Punjab Juvenile Smoking Act, 1918."
Section 46(2) of the Act 1994 states that provided that such an officer (i.e. an officer incharge of a Police Station) shall send the information to the Gram Panchayat after the conclusion of the CRWP No. 1843 of 2012 8 investigation. This proviso clearly mentions that when information is sent to the Gram Panchayat, such Gram Panchayat shall not proceed to try any complaint relating to the same facts nor shall it issue any summons in the matter, until the officer has intimated in writing that the investigation has been concluded. This means that investigation is to be carried as per the provisions of the Code of Criminal Procedure. Since, the expression "offence" used in the Act of 1994 has the same meaning as defined in the Code then the offence being cognizable and non-bailable, investigating officer has power to arrest and further proceed in the investigation. When the investigation is complete, then certainly intimation by the officer investigating the case will be by way of submission of report under Section 173 Cr.P.C. which is submitted before the criminal courts after completion of investigation. As per Section 44(3) of the Act 1994 Gram Panchayat shall be deemed to be criminal Court when trying criminal cases. It does not mean that investigation and arrest by the police officer is barred.
In view of this, the aforesaid contentions of the learned counsel for the petitioners are hereby rejected.
Learned counsel for the petitioners has further made reference to Section 71 of the Act 1994, which reads as under:-
"71. Provisions of the Code of Criminal Procedure, 1973, and the Code of Civil Procedure, 1908 to apply only where provided-- (1) The provisions of the Code of Criminal Procedure, 1973, the Code of Civil Procedure, 1908, and of the Indian Evidence Act, 1972, shall not CRWP No. 1843 of 2012 9 apply to proceedings before Gram Panchayats save to the extent mentioned in this Act, but the Gram Panchayat may ascertain the facts of any criminal case or civil or revenue suit by all legitimate means in its power and thereafter pass such order, sentence or decree as may be in accordance with justice, equity and good conscience.
(2) Every Gram Panchayat shall maintain a brief memorandum of proceedings of each case tried by it. (3) All orders, sentences and decrees shall be passed in accordance with the decision of the majority of the members present and voting:
Provided that in the case of equality of votes, person, presiding at such meeting shall in addition to his own vote as a member, have a second or casting vote. (4) All orders, sentences and decrees passed under sub-section (1) shall be announced in an open meeting of the Gram Panchayat by the person presiding at such meeting and decision shall be recorded and it shall be duly signed by all the members of the Gram Panchayat attending the meeting:
Provided that any member not concurring in the decision may record the dissenting note which will form part of the decision."CRWP No. 1843 of 2012 10
I have already held above that in cognizable and non-bailable cases, police can investigate and arrest the accused and after completing investigation can submit report under Section 173 Cr.P.C. Upto that stage, provisions of Cr.P.C. will apply. However, Section 71 of the Act 1994 clearly mentions that provisions of Code of Criminal Procedure shall not apply to proceedings before the Gram Panchayats save to the extent mentioned in the Act. In view of Section 46(2) of the Act the investigation is to be carried out by the police. After the conclusion of the investigation, challan is to be presented in this case. There is no bar for arrest of the accused. The Act 1994 nowhere mentions that the police is prohibited from the investigation of the case, rather Section 46 of the Act 1994 says that the investigation is to be carried out by the police. Thereafter, the Panchayat is to be intimated on the conclusion of the investigation. The Panchayat can take cognizance only when the investigation is complete and the papers are forwarded to the Panchayat. Section 51 of the Act 1994 says that the Gram Panchayat shall, if possible, try a criminal case and pass orders on the day on which the accused appears and, if that is not possible, may, if he is not already on bail, require him to execute a bond with or without sureties for a sum not exceeding five hundred rupees to appear before the Gram Panchayat on any subsequent day or days to which the trial may be adjourned.
Even otherwise, the present criminal writ petition for stay of arrest is not maintainable since for that very purpose the petitioners have already availed the remedy under Section 438 Cr.P.C. and the matter has CRWP No. 1843 of 2012 11 been settled up to the Hon'ble Supreme Court. Having failed to get relief in the anticipatory matter, now the petitioners cannot be permitted to take recourse by way of present criminal writ petition. Under the garb of criminal writ petition, the petitioners cannot be given any benefit for staying their arrest. It would amount to reviewing the earlier order of declining the stay of arrest in the anticipatory matter.
In addition to above, it would be pertinent to mention that a specific Act known as the Gram Nyayalayas Act, 2008 (for short the "2008 Act") has been enacted and has been made applicable to the many States including the State of Punjab. State Government is required to appoint a Nyayadhikari, in consultation with the High Court, under Section 5 of the said Act and the Legislature has specifically laid down the qualifications for Nyayadhikari under Section 6 of the Act, which reads as under:-
"6(1) A person shall not be qualified to be appointed as a Nyayadhikari unless he is eligible to be appointed as a Judicial Magistrate of the first class. (2) While appointing a Nyayadhikari, representation shall be given to the members of the Scheduled Castes, the Scheduled Tribes, women and such other classes or communities as may be specified by notification, by the State Government from time to time."
Keeping in view the gravity of the allegations and the nature of offence, no ground is made out for stay of arrest of the petitioners under Article 226/227 read with Article 21 of the Constitution of India specially CRWP No. 1843 of 2012 12 when for the same relief under Section 438 Cr.P.C. the petitioners have already approached this Court as well as the Hon'ble Supreme Court and the arrest of the petitioners was not stayed.
Dismissed.
November 07, 2012 [Paramjeet Singh] vkd Judge