STATE OF KERALA P KOMU AND MAMMOOTTY Vs. EXECUTIVE OFFICER NEDIYIRUPPU PANCHAYAT
HIGH COURT OF KERALA
STATE OF KERALA P KOMU AND MAMMOOTTY
EXECUTIVE OFFICER NEDIYIRUPPU PANCHAYAT
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(1.) THESE two cases have come before us pursuant to an order of reference made by our learned brother Sadasivan, J. The question arising for decision relates to the validity of Rule 3 of the Kerala Panchayats (Trial of Offences by Magistrates) Rules 1904, as it stood before its recent amendment as per Notification G. O. Ms. 440/67/dd dated 14-12-1967.
(2.) WE shall briefly state the circumstances under which the above references have been made. Section 74 of the Kerala Panchayats Act, 1960 (hereinafter referred to as the Act) provides for the recovery of arrear of tax, cess etc. due to a Panchayat; and prosecution of the defaulter before a Magistrate is one of the modes provided thereunder. Section 129 of the Act contains the rule-making power of the Government; and Section 129 (2), Clause (xxxix) reads as follows:-
"129 (2 ). In particular, and without pre judice to the generality of the foregoing power, the Government may make rules-- x x x x X (xxxix) as to the class of Magistrates by whom offences against this Act shall be tried; X X X X X" The Kerala Panchayats (Trial of Offences by Magistrates) Rules 1964 (hereinafter referred to as the Rules) were made by the Government in exercise of the aforesaid power. Section 3 of the Rules, as it originally stood, read as follows:--"all offences against the Act or the Rules or bye-laws framed thereunder shall be tried by a Magistrate of Second Class. " Most of the offences under the Act and the several rules made thereunder are, according to the Second Schedule of the Criminal Procedure Code, triable by any Magistrate; and there are no offences which cannot be tried by a Magistrate of the Second Class.
(3.) THERE are District Magistrates, Sub-Divisional Magistrates and Magistrates of the First and Second Classes in this State; and the State Government have defined the local areas within which such persons may exercise their powers. There are some local areas in the State for which the Government have not appointed any Second Class Magistrate, but only a First Class Magistrate. This is because under the third schedule to the Criminal Procedure Code, a First Class Magistrate has all the ordinary powers of a Second Class Magistrate, and there may not be sufficient work for both a First Class Magistrate and a Second Class Magistrate to function in the game local area. Then the First Class Magistrate would take cognizance of and try also Second Class Offences committed within his local limits. Accordingly, complaints In respect of offences under the Act or the rules made thereunder committed within the local limits of a first Class Magistrate, in respect of which there is no Second Class Magistrate, used to be filed before the First Class Magistrate; and he would take cognizance of the same and try and dispose of them. The question was raised before this Court in Viswanathan v. Akathethara Panchayat, 1967 Ker LT 314 whether, in view of Rule 3 of the Rules, a First Class Magistrate was competent to try an offence under the Act. That case was decided by one of us; and it was held therein on the authority of the decision of the Supreme Court in State of U. P. v. Sabir Alt AIR 1964 SC 1673 that such offences are triable only by a Second Class Magistrate, and that a First Class Magistrate' was not competent to try them. Apparently, it was on the basis of this decision, Rule 3 was amended on 14-12-1967 by adding the following proviso thereto:--
"provided that in the case of a Panchayat the area of which does not fall within the jurisdiction of any Second Class Magistrate, such offences shall be tried by a Magistrate of the First Class having jurisdiction over the Panchayat area. ";
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