State vs Ismail Sher Gojri and Others

Mian Jalal-Ud-Din, C.J.—This is a criminal reference made by the C.J.M. Anantnag in a criminal revision. The learned C.J.M. has

recommended that the order dated 6-11-1971 passed by the Judicial Magistrate, Pulwama, declining to take cognizance of the case be set aside

and the magistrate directed to proceed with the disposal of the case in accordance with law.

To put in brief the facts of the case are: That the Police Awantipora submitted the charge sheet in a criminal case u/s 173 Cr.P.C. before the

Judicial Magistrate Pulwama against the accused-respondents. According to the charge sheet the accused had committed offences punishable

under Sections 447 and 323 R.P.C. After the challan was presented, before the magistrate, an objection was taken on behalf of the accused that

the criminal court was not competent to try the offences inasmuch as the jurisdiction of the magistrate to hear and try the case was barred u/s 96 of

the Jammu and Kashmir Village Panchayat Amendment Act, 1973. The argument was that under this section exclusive jurisdiction has been

conferred on the Panchayati Adalat to try offences, inter alia those under Sections 447 and 323 R.P.C. This argument prevailed with the learned

Magistrate who by the impugned order returned the challan to the Police for presenting it before the competent forum. In this way the Magistrate

declined to proceed with the trial of tha case. Aggrieved by this order, the State went up in revision before the C.J.M. Anantnag who has made

this reference.

The learned Advocate General has submitted that Section 96 of the Village Panchayat Act, did not operate as a bar to the trial of offences

inasmuch as the complainant before the Magistrate was the Police. Under proviso to Section 75 of the Village Panchayat Act, Panchayati Adalat

could not take cognizance of any case relating to offences specified in the First Schedule in which either the complainant or the accused is a public

servant. The present case was, therefore, saved by the proviso. It is further submitted that after the Police had investigated the case and the

investigation had revealed that the accused were responsible for committing the offences, the only course left to the Police was to submit the

charge-sheet before the Magistrate in accordance with Section 173 Cr.P.C. and the police could not lay the challan before the Panchayati Adalat.

Mr. Abdul Qayoom appearing for the respondents has, on the other hand, submitted ihat u/s 75 of the Act, it is only the Panchayati Adalat that

has got jurisdiction to take cognizance of the above mentioned offences. Jurisdiction of criminal courts for taking cognizance of these offences has

been expressly excluded by S, 75 of the Act. It is further submitted that this section overrides the Code of Criminal Procedure in view of non

obstante clause appearing in this section. According to the learned Counsel the order passed by the Judicial Magistrate was a proper order and the

reference made by the learned C.J.M. was misconceived.

To me it appears that the reference is well founded. When the Police investigated the case and found that the accused were prima facie liable to

be prosecuted before a court of law, they had to proceed u/s 173 Cr.P.C. which provides the submission of the report before a Magistrate

competent to try the offences. It could not be said that the Police had to submit the challan before the Panchayati Adalat u/s 75 of the Panchayat

Act. Proviso to Section 75 of the Act, makes it abundantly clear that if the complainant is a public servant, then jurisdiction of the Panchayati

Adalat is taken away. The word ""complainant"" has not been defined in the Cr.P.C. but the word 'complaint' has been defined which means

according to the definition, the allegation made orally or in writing to a magistrate with a view to his taking action under the Code that some person

has committed an offence. A person who lodges a complaint is the complainant. But what appears from definition of the word 'complaint', it is

essential that it must be made to a magistrate and not to any other forum. It is pertinent to mention here that the Village Panchayat Act has used the

expression 'case' in relation to criminal proceedings and not 'complaint'. u/s 75 of the Act, the expression used is 'case' and not 'complaint'. In my

opinion, the law does not, therefore, permit submission of charge sheet by a Police Officer before a Panchayati Adalat.

For the foregoing reasons, the order of the Judicial Magistrate is erroneous in law and is liable to be set aside. The result is that the reference is

allowed, and the order of the Judicial Magistrate is set aside and he is directed to re-admit the case on his files and proceed with its disposal in

accordance with law. The respondents, who are present in court, are directed to appear before the Judicial Magistrate, Pulwama on September

1978, for further proceedings.