MANOJ KUMA Vs. LALITA DEVI
LAWS(HPH)-1997-2-2
HIGH COURT OF HIMACHAL PRADESH
Decided on February 25,1997

Manoj Kuma Appellant
VERSUS
LALITA DEVI Respondents


Referred Judgements :-

SHRI BHAGWANT V. SMT. SHYAM DEVI [REFERRED TO]
PADAM SINGH V. SMT. KANTA [REFERRED TO]
HARI DEVI V. BHAGAT SINGH [REFERRED TO]
GOVERDHAN DASS V. BHAGMATU [REFERRED TO]


JUDGEMENT

M.SRINIVASAN, J. - (1.)THIS case has come before us on a reference by a Single Judge of this Court. The question referred to is :
"Whether in the face of the provisions of Sections 2(6) and 2(32) of the Himachal Pradesh Panchayati Raj Act, 1995 the cases under Section 125 of the Criminal Procedure Code, which were pending on the date of coming into force of the Act before courts, are liable to be transferred in the absence of there being any specific provision in the Act ?"

(2.)THE learned Judge could not agree with the view expressed by Justice Vaidya in Hari Devi v. Bhagat Singh and another, 1996(2) SLJ 1625, that on the passing of the Panchayati Raj Act, 1994 the cases pending before the Judicial Magistrate shall be transferred to the Gram Panchayat. The facts have been set out in the order of reference. It is not necessary to repeat the same herein. Suffice it to point out that the Himachal Pradesh Panchayati Raj Act, 1968 (Act 19 of 1970) was repealed by the Himachal Pradesh Panchayati Raj Act, 1994 (Act 4 of 1994). The said Act came into force on 23.4.1994. The contention urged on behalf of the petitioner in this case is that after coming into force of the said Act, no proceeding can be filed before a Judicial Magistrate under Section 125 of the Criminal Procedure Code and even if any proceeding has been pending before such a Judicial Magistrate, it has to be transferred to the concerned Panchayati Court. According to learned counsel, Section 32(2) of the Act read with Section 35 of the said Act will lead to such a conclusion.
In order to appreciate the contentions, the relevant sections are set out as hereunder :

"32. (1) Offences mentioned in Schedule-III or declared by the State Government to be cognizable by a Gram Panchayat, if committed within the jurisdiction of a Gram Panchayat, and abetment of an attempt to commit such offences shall be cognizable by such Gram Panchayat. (2) Application for maintenance under section 125 of the Code of Criminal Procedure, 1973, shall be heard and decided by the Gram Panchayat. A Gram Panchayat may grant a maintenance allowance not exceeding five hundred rupees per month on such application without prejudice to any other law for the time being in force in this behalf." "34. 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. 35. If, at any stage of the proceedings in a criminal case pending before a Magistrate, it appears that 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."

(3.)IN sofar as Section 32 is concerned, sub-section (1) expressly refers to offences mentioned in Schedule III or declared by State Government to be cognizable by a Gram Panchayat, but sub-section (2) of the said section refers only to an application for maintenance under Section 125 of the Code of Criminal Procedure, 1973. The last part of the section uses the expression 'without prejudice to any other law for the time being in force in this behalf'. The said expression is absent in sub-section (1). The user of the said expression is very significant inasmuch as sub-section (2) refers only to an application for maintenance under Section 125 of the Code of Criminal Procedure, 1973. That shows that sub-section (2) does not confer any exclusive jurisdiction on Gram Panchayat and it has not affected in any manner any other law which provides for any proceeding to be taken for grant of maintenance.


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