M.C.Desai, C.J. - (1.) This is an appeal from a judgment of our brother B.D. Gupta dismissing the appellant's petition for certiorari to quash an order passed under Section 12-C of the U.P. Panchayat Raj Act by a tribunal setting aside the appellant's election to the office of Pradhan. Jagnoo and Gajja respondents, who are not represented before us, were tried along with Mohkam and Nain Sukh for the offence of Section 379, Indian Penal Code before a Nyaya Panchayat. Mohkam and Nain Sukh were public servants within the meaning of Section 28 of the Panchayat Raj Act. Section 55(1) provides that no court except as provided in the Act shall take cognizance of any case triable by a Nyaya Panchayat. Section 52 provides that certain offences mentioned in it as well as abetments of and attempts to commit them are cognisable by a Nyaya Panchayat and Section 379, Indian Penal Code is mentioned in it. Section 53 authorises a Nyaya Panchayat to call upon a person to execute a bond for keeping the peace for a period not exceeding fifteen days. Thus a Nyaya Panchayat has jurisdiction to try certain offences and also to demand security for keeping the peace and the word 'case' has been used in Section 55 to include a proceedings in which a person is accused of an offence and a proceedings in which a person is called upon to show cause why he should not be bound down to keep the peace. Section 59 lays down that "no Nyaya Panchayat shall take cognizance of any criminal case against a person where such person- (a) has been previously convicted of an offence punishable with imprisonment of either description for a term of three years or more ....or (e) is a public servant." In the case before the Nyaya Panchayat the allegation was that the two respondents Mohkam and Nain Sukh had jointly committed the offence of theft. It tried all the four and convicted all. Revision applications were filed against the conviction recorded by it by all the four persons. The court of revision quashed the conviction of Mohkam and Nain Sukh on account of the bar imposed by Section 59(e) and maintained the conviction of the respondent. Subsequently an election for the office of Pradhan of the Gaon Sabha took place and the two respondents, Chhotey Lal appellant and Chhedi Lal the contesting respondent were nominated. The nomination papers of the two respondents were rejected by the Returning Officer under Section 5A(r) on the ground that they had been convicted under Section 379, Indian Penal Code by the Nyaya Panchayat and the election was fought between the appellant and Chhedi Lal and the appellant was declared duly elected. Chhedi Lal filed a petition under Section 12-C challenging the election of the appellant on the sole ground that the nomination papers of Jagnoo and Gajja were improperly rejected because their conviction by the Nyaya Panchayat even though for the offence of Section 379, I.P.C. was without jurisdiction. The tribunal allowed the election petition and set aside the election of the appellant. The appellant applied for certiorari for the quashing of the tribunal's order and our learned brother has refused certiorari. He agreed with the view taken by the tribunal that the conviction under Section 379 recorded by the Nyaya Panchayat against the two respondents was without jurisdiction.
(2.) The tribunal had jurisdiction over the offence under Section 379, Indian Penal Code and also had jurisdiction over the two respondents. It did not lack inherent jurisdiction to try and convict them. They could have been tried separately from Mohkam and Nain Sukh even though they committed the offence jointly with them. The provision for a joint trial even in the Code of Criminal Procedure is only by way of exception to the rule that every person should be tried separate trial. Not only could the two respondents have been separately prosecuted, tried and convicted by the Nyaya Panchayat but also the Nyaya Panchayat could have taken cognizance of the offence only against them even if they were prosecuted together with Mohkam and Nain Sukh. Section 59 barred its taking cognizance of the offence against Mohkam and Nain Sukh only. It is an exception to the provision in Section 52 which gives a Nyaya Panchayat complete jurisdiction in respect of the offence under Section 379, Indian Penal Code. If Section 59 did not exist the Nyaya Panchayat would have had jurisdiction to convict all the four persons brought to trial before it. Section 59 only barred its jurisdiction against Mohkam and Nain Sukh; it follows that it retained its jurisdiction to try and convict the respondents. The respondents were not public servants and were not previous convicts and there was no ban imposed by Section 59 upon their trail by the Nyaya Panchayat. The only ban imposed by the section was on the trial of Mohkam and Nain Sukh. As the Nyaya Panchayat had jurisdiction over the offence and also over the two respondents it cannot be said that it lacked jurisdiction merely because they were tried together with Mohkam and Nain Sukh. It was not a case of the respondents being tried by a court which lacked inherent jurisdiction and of the conviction recorded being a complete nullity.
(3.) Chattar Singh v. The State A.I.R. 1953 All. 161 : 1953 A.L.J. 179 was a converse case. The facts there were that Chattar Singh and Samokhan were tried before a Magistrate for the offences under Sections 326 and 323, Indian Penal Code respectively. The offence of Section 323 is exclusively triable by a Nyaya Panchayat and an offence under Section 326 is wholly outside its jurisdiction. Both persons were convicted and Chhattar Singh challenged his conviction on the ground that his case should have been separated from the case against Samokhan and transferred to a Nyaya Panchayat for trial. Brij Mohan Lal and Beg, JJ. held that the Magistrate was under no such obligation and that as the whole case could not be tried by a Nyaya Panchayat it could be tried by a Magistrate. The learned Judges referred to the words "any case" used in Section 55 and to the words "criminal case" used in Section 59 and said that they meant the entire case and not a case against any particular accused, because otherwise they would have to interpret the two sections as if the words "any case against an accused" were added in it. Section 55 is a general section dealing with the jurisdiction of a Nyaya Panchayat over cases. Section 56 simply lays down that if a court finds that the case before it is triable by a Nyaya Panchayat it must transfer it to the Nyaya Panchayat of competent jurisdiction. Section 59 provides only an exception and expressly refers to case against particular persons. The words "against a person where such person.... is a public servant" occurring in Section 59 mean that the case only against that person is taken out of the jurisdiction of a Nyaya Panchayat. The word "case" is used but not in isolation; it is used with reference to a particular person. It is not the whole case that is excluded from a Nyaya Panchayat's jurisdiction but only the case against a particular person. Section 59 does not deal with a case against persons mentioned in it. We are not prepared to interpret it as if it laid down that no Nyaya Panchayat shall take cognizance of any criminal case in which any of the accused persons is a public servant. What the tribunal and our learned brother have held is that a Nyaya Panchayat is deprived of jurisdiction over any criminal case if any of the accused involved in it is one of the persons mentioned in it. With great respect to our learned brother we find ourselves unable to agree to this interpretation which would involve legislation. The words actually used in Section 56 do not mean what they are supposed to mean. Full effect is given to them by saying that the case of only those accused persons who are mentioned in it is taken out of the jurisdiction of the Nyaya Panchayat, not the case against other persons even if jointly concerned in the commission of the offence and jointly tried with them. On account of the difference between the words used in Sections 55 and 56 on one side and Section 59 on the other side it cannot be said that Section 59 also refers to the entire case and not to the case against the particular persons referred to in it.;