Pahla Vs. Makhdoom

Pahla vs Makhdoom

Type Court Judgment Court Allahabad Decided Sep 26, 1951

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Citation: sooperkanoon.com/447759
Court: Allahabad High Court
Judge: N.U. Beg, J.
Decided On: Sep 26, 1951
Case Number: Criminal Ref. No. 42 of 1951
Subject: Criminal

Case Summary

AI-generated summary - not the official court judgment text.

Criminal - power of panchayati adalat - Section 85 of U.P. Panchayati Raj Act, 1947 - case transferred from panchayat and jurisdiction cancelled by Sub-Divisional Magistrate - panchayat proceeded with case convicted the accused - held, order of panchayat ultra vires even if order of cancellation not communicated to...

Key legal issue: Criminal
Acts & sections: Uttar Pradesh Panchayat Raj Act, 1947 - Sections 85 and 85(1); Code of Criminal Procedure (CrPC) , 1898 - Sections 350(3) and 528(2)

Parties & Advocates

Appellant / Petitioner

Pahla

Advocate Kalbe Mustafa, Adv.

Respondent

Makhdoom

Legal References

Acts: Uttar Pradesh Panchayat Raj Act, 1947 - Sections 85 and 85(1); Code of Criminal Procedure (CrPC) , 1898 - Sections 350(3) and 528(2)
Reported In: AIR1952All28

Excerpt

.....schools (conditions of service) regulations act, 1978 [act no. 3/1978]. sections 9 & 2(21): jurisdiction of school tribunal whether a school run by cantonment board is not a recognised school within the meaning of section 2(21)? - held, the act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the act shall apply to all private schools in the state whether receiving any grant-in-aid from the state government or not. private school is defined in section 2(2) of the act as a recognised school established or administered by a management other than the government or a local authority. recognised means recognised by director, the divisional board or state board. thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four directors, the divisional boards and four state boards. the second part of this definition which comes after the comma refers to any officer authorised by director or by any of such boards. the question to be examined is whether school run by the cantonment board could be said to be one run by any such boards. a private school has to be recognised by the state or the divisional board or by any officer authorised in that behalf. when this phrase namely: recognised by any officer authorised by the director or by any such boards, is included in the latter part of section 2(21), such boards will be of the level of the state board or the divisional board. the boards referred to in the definition of the word recognised means the boards which deal with education at levels other than that of the level at which primary schools are operating. thus for being recognised, the school has to be recognised by the board and therefore, it has to be operating at a higher level i.e., secondary level. section 2(21) of the act defines the term recognised. the last clause therein is by any of such boards. the term such is defined in oxford dictionary as.....ordern.u. beg, j.1. the facts out of which this revision arises lie within a short compass. on 6-3-1950, a complaint was lodged by one makhdoom against pahla accused for an offence under section 379, penal code. this complaint was sent to the pancbayat for disposal. on 11-5-1950, the accused gave an application for transfer of the case and cancellation of the jurisdiction of the panchayat under section 85 (1), u.p. panchayat raj act (xxvi [26] of 1947). this application was granted by the sub-divisional magistrate and the case was ordered to be transferred to the court of mr. s.l. shukla, a local magistrate, for trial. in spite of this order the panchayat proceeded to try the accused and on 21-5-1950, passed an order convicting him under section 379, penal code, and sentencing him to pay a fine of rs. 70 and directing that out of the said fine rs. 40 should be paid to makhdoom as compensation in respect of the ornament stolen by the accused. according to the case of the accused, he had approached the panchayati adalat and informed its members previous to the date of conviction that an order cancelling its jurisdiction had been passed by the sub-divisional magistrate and in spite of the said intimation the panchayat proceeded to try the case. the record shows that the said order of transfer was formally communicated to the sarpanch of the panchayati adalat on 23-5-1950, after the panchayat had already decided the case on 21-5-1950. a paper on the record which is marked as paper no. 3a and is an office report, however, indicates that the order of 11-5-1950, cancelling the jurisdiction of the panchayati adalat had reached it on 20-5-1950, and that the panchayat proceeded to try the accused and to convict him in spite of the fact that it was apprised of the order of cancellation of its jurisdiction by the court of the sub-divisional magistrate.2. the accused filed a revision application against his conviction before the sub-divisional magistrate. the sub-divisional.....

Full Judgment

ORDER

N.U. Beg, J.

1. The facts out of which this revision arises lie within a short compass. On 6-3-1950, a complaint was lodged by one Makhdoom against Pahla accused for an offence under Section 379, Penal Code. This complaint was sent to the pancbayat for disposal. On 11-5-1950, the accused gave an application for transfer of the case and cancellation of the jurisdiction of the panchayat under Section 85 (1), U.P. Panchayat Raj Act (XXVI [26] of 1947). This application was granted by the Sub-Divisional Magistrate and the case was ordered to be transferred to the Court of Mr. S.L. Shukla, a local Magistrate, for trial. In spite of this order the panchayat proceeded to try the accused and on 21-5-1950, passed an order convicting him under Section 379, Penal Code, and sentencing him to pay a fine of Rs. 70 and directing that out of the said fine Rs. 40 should be paid to Makhdoom as compensation in respect of the ornament stolen by the accused. According to the case of the accused, he had approached the panchayati adalat and informed its members previous to the date of conviction that an order cancelling its jurisdiction had been passed by the Sub-Divisional Magistrate and in spite of the said intimation the panchayat proceeded to try the case. The record shows that the said order of transfer was formally communicated to the Sarpanch of the panchayati adalat on 23-5-1950, after the panchayat had already decided the case on 21-5-1950. A paper on the record which is marked as paper No. 3A and is an office report, however, indicates that the order of 11-5-1950, cancelling the jurisdiction of the panchayati adalat had reached it on 20-5-1950, and that the panchayat proceeded to try the accused and to convict him in spite of the fact that it was apprised of the order of cancellation of its jurisdiction by the Court of the Sub-Divisional Magistrate.

2. The accused filed a revision application against his conviction before the Sub-Divisional Magistrate. The Sub-Divisional Magistrate maintained the conviction of the accused but reduced the fine from Rs. 70 to Rs. 50. A revision against the said order of conviction was filed before the Sessions Judge of Rai Bareli, who has made a reference to this Court for quashing the order of conviction of the accused-applicant. The opposite, party has been served but no one appears on his behalf to support the order of the lower Court.

3. Having heard the learned counsel appearing for the accused-applicant, I am of opinion that the order of conviction passed by the panohayat was clearly ultra vires. If the order was communicated to the panchayat, then the panchayat had obviously no jurisdiction to proceed with the trial of the case. Even if it be assumed that the order was not communicated to the panchayat, the order would take effect from the date on which it was passed.

4. In Mardan v. Rex (A.I.R. (37) 1960 ALL. 478) it was held that an order of transfer takes effect as soon as it is pronounced and the Magistrate has no jurisdiction to go on with the case after the order of transfer is passed. Even if the accused knows the order of transfer and addresses argument or takes any other steps, his action would not confer any jurisdiction upon the Court. An order convicting the accused after the order of transfer is passed is, therefore, without jurisdiction.

5. An attempt seems to have been made in the lower Court to justify the order of conviction of the accused on the basis of Section 85 (5) of the Panchayat Raj Act. Section 85 (5) of the said Act says that:

'except an aforesaid, a decree or order passed by a panchayati adalat in any suit, case or proceeding under this Act shall be final and shall not be open to appeal or revision in any Court.'

This argument advanced on behalf of the complainant seems to me to be devoid of all force in view of the fact that if the panchayat had no jurisdiction to try the case, its order could not be an order under the Panchayat Raj Act at all. I am clearly of opinion that the order of conviction of the accused is ultra vires and must be set aside.

6. I accordingly accept the reference, set aside the order of conviction of the accused and send back the case to the District Magistrate who should direct the retrial of the accused by a Sub-Divisional Magistrate competent to try it according to law.

Same Parties Pahla vs Makhdoom Same Subject Criminal Same Judge N.U. Beg, J. Acts & Sections Uttar Pradesh Panchayat Raj Act, 1947 - Sections 85 and 85(1)...

Criminal