Smt. Roshni vs The State

R.S. Pathak, C.J.—This is a reference made by the learned Sessions Judge, Kangra u/s 438 of the Code of Criminal Procedure.

Shrimati Roshni was accused of an offence u/s 447 of the Indian Penal Code and was convicted by a First Class Magistrate on November 20, 1970 and sentenced to a fine of Rs. 50 and in default to simple imprisonment for one month. An appeal filed by Smt. Roshni came on for hearing before the learned Sessions Judge, Kangra. In the view that u/s 207 of the Himachal Pradesh Pan-chayati Raj Act, 1969, the case should have been transferred by the Magistrate to the Nyaya Panchayat Mehla, within whose jurisdiction the case fell, he has recommended that the conviction and sentence be quashed and an appropriate direction be made.

It appears to me that the recommendations of the learned Sessions Judge must be accepted. An offence u/s 447 of the Indian Penal Code is triable by a Nyaya Panchayat. That is clear from Section 203 of the Himachal Pradesh Panchayati Raj Act read with Entry 31 of Schedule II to the Act. The Act was brought into force on November 15, 1970, while the proceeding was still pending before the Magistrate. A proceeding remains pending so long as it is not disposed of by an order. That was the view taken in Emperor v. Fazal Rahman AIR 1937 Pesh. 52 and Workmen of Bali Singh and Bhagwan Singh Vs. Management of Bali Singh and Bhagwan Singh, The proceeding was still pending with the Magistrate and, on November 15, 1970, therefore, he should have acted u/s 207 of the Act. Section 207 provides:

If, at any stage of the proceedings in a criminal case pending before a Magistrate, it appears that the case is triable by a Nyaya Panchayat, he shall at once transfer the case to that Nyaya Panchayat which shall try the case de novo.

It is apparent that the Magistrate had no jurisdiction to go on with the proceeding once the Act had been brought into force. He should have immediately transferred the case to the Nyaya Panchayat which had jurisdiction over it.

Accordingly, the reference is accepted and the revision is allowed. The proceedings concluding with the conviction and sentence ordered by the Magistrate against Smt. Roshni are quashed. The case will now be tried de novo by the Nyaya Panchayat, Mehla.