Dua, J.
(1) The only question which arises for decision in this appeal is whether the order of the Magistrate Ist Class, Rohtak, dated 30-7-1958, is without jurisdiction and therefore illegal and void as found by the learned Sessions Judge and whether the lower appellate Court was justified in setting aside the said order without considering the appeal on the merits.
(2) Giani Ram brought a complaint against Attar Chand and 4 others under Ss. 447, 448/147 of the India Penal Code. The learned Magistrate, however summoned only Attar Chand and Gurdas Mal and after trial found them both technically guilty of the offence under S. 447, Indian Penal Code. On this finding they were fined Rs. 51/- each.
(3) Feeling aggrieved the two accused went up in appeal to the Court of the learned Sessions Judge. The lower appellate Court has observed that after recording preliminary enquiry the learned Magistrate had summoned Attar Chand and Gurdas Mal only under S. 447 of the Indian Penal Code and offence under this section being triable by the Gram Panchayat, the Magistrate should have transferred the proceedings to the Panchayat of competent jurisdiction as enjoined by S. 41 of the Gram Panchayat Act. On this finding the appeal was allowed, the order of the trial Magistrate set aside and the accused acquitted.
(4) Against this order of acquittal, Giani Ram has preferred this appeal and we have heard Mr. Prem Chand Jain for the appellant, Mr. K. L. Jagga for the State and Mr. Rup Chand for the accused. Mr. Jain has submitted that if the complaint as brought includes an offence which is outside the jurisdiction of the Panchayat, then the Magistrate is not obliged to transfer the proceedings from his Court to be a Panchayat of competent jurisdiction.
He has also submitted that the Magistrate should be deemed to take cognizance of an offence when the actually entertains a complaint and the mere fact that he order a preliminary enquiry does not necessarily means that the Magistrate has not taken cognizance of the offence. In support of his contention he has placed reliance on R. R. Chari v. State of Uttar Pradesh, AIR 1951 SC 207, in which the following quotation from a decision in Superintendent and Remembrancer of Legal Affairs, West Bengal v. Abani Kumar Banerjee, AIR 1950 Cal 437, was reproduced with approval:
'What is 'taking cognizance' has not been defined in the Criminal Procedure Code, and I have no desire now to attempt to define it. It seems to me clear, however, that before it can be said that any Magistrate has taken cognizance of any offence under S. 190 (1)(a), Criminal Procedure Code, he must not only have applied his mind to the contents of the petition, but he must have done so for the purpose of proceeding in a particular way as indicated in the subsequent provisions of this Chapter, proceedings under S. 200, and thereafter sending it for enquiry and report under S. 202.
When the Magistrate applies his mind not for the purpose of proceeding under the subsequent sections of this Chapter, but for taking action of some other kind, e. g., ordering investigation under S. 156 (3), or issuing a search warrant for the purpose of the investigation, he cannot be said to have taken cognizance of the offence'.
The counsel has also submitted that no objection having been raised by the accused persons in the Court of the Magistrate questioning his jurisdiction, the order of the trial Court should not have been set aside as illegal and void and S. 529 of the Code of Criminal Procedure should have been held to save these proceedings. In support of his submission, the counsel has referred us to Purshottam Jethanand v. State of Kutch, AIR 1954 SC 700, head-note (a) of which is in the following terms:
'Where a Magistrate of the First Class, though not empowered to do so, takes in good faith cognizance of an offence under S. 190(1)(a) and (b), the defect of the absence of any prejudice to the accused is cured by S. 529. And further the defect will be held as cured by a bona fide decision given by the Magistrate as to the existence of the power when objection thereto is taken, even assuming without deciding that the 'taking of cognizance' was then continuing'.
(5) The counsel has also relied on a decision of a Division Bench of this Court in State v. Harbhajan Singh, (1956) 58 Pun LR 323. In this case S. 41 of the Punjab Gram Panchayat Act came up for consideration in the following circumstances: Proceedings were originally started against 3 accused under S. 147 read with S. 367 and S. 342 of the Indian Penal Code; after recording evidence of the Magistrate found that no offence under S. 367, Penal Code, had been proved against any of the accused and the offence under S. 342, Penal Code, was only proved against two to them, and convicted them under S. 342, Penal Code; it was also found that there was no unlawful assembly and therefore three of the accused persons were convicted under S. 323, Penal Code, for their individual act.
The High Court held that the proceedings before the Magistrate were not to be stayed and the case was not to be referred to a Gram Panchayat; the Magistrate was held to possess full jurisdiction to convict the accused under S. 323, Penal Code. While dealing with the scope of S. 41 of the Gram Panchayat Act it was observed that all that S. 41 requires is that if a complaint or a report of an offence triable by a Gram Panchayat is brought before a Magistrate or he takes cognizance of any such offence upon his own knowledge or suspicion, he shall transfer the proceedings to a Gram Panchayat, which can only mean that where the complaint is made under S. 323, Penal Code, or cognizance is taken under S. 323 alone, then the Magistrate shall transfer the case to a Gram Panchayat.
Where neither the complaint not the report by the Police is under a section exclusively triable by a Gram Panchayat nor cognizance taken for an offence mentioned in Schedule IA of the Gram Panchayat Act, the Magistrate is not bound to transfer the case to the Gram Panchayat. The contention of the counsel is that in the instant case the complaint was not exclusively confined to an offence trial by a Gram Panchayat, with the result that, according to the reasoning of the Division Bench, the Magistrate was not under an obligation to transfer the proceedings to a Gram Panchayat.
(6) While dealing with Meena Ram v. Mt. Dwarki, (1958) 60 Pun LR 417: (AIR 1958 Punj 417), on which the learned Sessions Judge has placed his reliance, the counsel submits that the reported case dealt with the scheme of the Pepsu Panchayat Raj Act and the language of S. 67 of the said Act is not wholly similar to that of S. 41 of the Punjab Act IV of 1953. Mr. Jagga, counsel for the State, has also supported the contention advanced by the counsel for the appellant.
He has emphasised the distinction between a complaint or report by the Police of an offence triable by a Panchayat bought before a Magistrate, and an offence of which the Magistrate takes cognizance upon his own knowledge or suspicion; the contention being that as soon as a complaint is brought before a Magistrate S. 41 becomes operative and it is not necessary to go into the technical question as to when a criminal Court can be deemed to take cognizance of an offence.
He submits that as soon as a complaint is brought before a Magistrate if that complaint is not confined exclusively to an offence triable by a Panchayat, the Magistrate concerned is under no legal obligation to transfer the proceedings to a Panchayat of competent jurisdiction. He also supported the submission of Mr. P. C. Jain that the irregularity, if any, is saved by Ss. 529 and 537 of the Code of Criminal Procedure.
(7) Mr. Rup Chand, on behalf of the accused, has urged that it is the substance of the offence which is to be considered and mere label of the section, under which the complaint has been preferred, is not of much consequence. He also submits that as soon as the Magistrate came to the conclusion that the offence established on the record, was only under S. 447 of the Indian Penal Code, he should have stayed his hands at that stage, and transferred the proceedings to a Panchayat of competent jurisdiction. According to the counsel this construction alone would promote the objet of the statute.
(8) After considering the respective contentions advance by the counsel for the complainant and the State on the one side and the accused on the other, I am of the opinion that the order of the trial Court is not tainted with any illegality which renders it void or without jurisdiction. It may be noticed that the Gram Panchayat Act does not specifically or expressly deprive the ordinary criminal Courts of their jurisdiction to try offences under the Indian Penal Code. S. 41 of the Gram Panchayat Act is in the following terms:
'41. Any magistrate before whom a complaint or report by the police of any offence triable by a Panchayat is brought or who takes cognizance of any such offence upon his own knowledge or suspicion shall transfer the proceedings to the Panchayat of competent jurisdiction:
Provided that a District Magistrate may for reasons to be recorded in writing transfer any criminal case from one Panchayat to another Panchayat of competent jurisdiction or to another Court subordinate to him.'
The proviso clearly suggests that the framers of the Gram Panchayat Act did not intend to take way the jurisdiction vested in the criminal Courts, to try the offences which they are empowered to try under the code of Criminal Procedure. The ordinary criminal Courts have not been completely divested of their jurisdiction under the general law.
The section merely places a restriction with respect to certain minor offences mentioned in S. 38 of the Gram Panchayat Act read with Schedule I-A. But this restriction is also removable by a District Magistrate who may, for reasons to be recorded in writing, transfer any criminal case from a Panchayat to another Court subordinate to him. The offences with respect to which criminal jurisdiction has been vested in the Gram Panchayats are, as is clear from Schedule I-A, very minor offences.
If, therefore, a complaint contains allegations which may amount to an offence which is not triable by a Panchayat, then in my opinion, the Magistrate is under no obligation to transfer the proceedings, in pursuance thereof, to a Panchayat, and similarly the Panchayat would not be competent to entertain and enquire into such a complaint. Even if S. 41 is capable of two interpretations, one as suggested by the counsel for the complainant and the other as suggested by the counsel for the accused, I think the one which ensures to a citizen, trial by a more competent and trained judicial officer must be preferred to the one which subjects him to be tried by untrained, unprofessional and not very literate officers, who owe their position to a not very satisfactory method of election.
I am also of the view that if no objection is raised before the trial Court on this core, it would merely be an irregularity which would not by itself vitiate the proceedings. S. 529 of the Code of Criminal Procedure is in the following terms.
'529. Irregularities which do not vitiate proceedings--
If any Magistrate not empowered by law to do any of the following things, namely:
(a) to issue a search-warrant under S. 98;
(b) to order, under S. 155, the police to investigate an offence;
(c) to hold an inquest under S. 176;
(d) to issue process, under S. 186, for the apprehension of the person within the local limits of his jurisdiction who has committed an offence outside such limits;
(e) to take cognizance of an offence under S. 190, sub-s (1), clause (a) or clause (b);
(f) to transfer a case under S. 192;
(g) to tender a pardon under S. 337 or S. 338;
(h) to sell property under S. 524 or S. 525;
or
(i) to withdraw a case and try it himself under S. 528;
erroneously in good faith does that thing, his proceedings hall not be set aside merely on the ground of his not being so empowered.'
If a Magistrate erroneously and in good faith takes cognizance of an offence under S. 190, sub-s (1) clause (a) or clause (b), his proceedings are not be set aside merely on the ground of his not being so empowered. It has not been contented--and I think it is not possible to contend--that the accused in the present case have in any way been prejudiced by the trial having been held by a Magistrate of 1st Class.
The Magistrate are the normal custodians of the general administration of criminal justice. It is true that so far separation of the executive from the judiciary has not been effected in this State as contemplated by Art. 50 of the Constitution and the Magistrates are invested with both executive and judicial powers, but it cannot be contended, and it has not been contended before us, that an accused person can by any stretch be considered to have been prejudiced by having been tried before a Magistrate according to the Code of Criminal Procedure with the aid of a lawyer, instead of the Panchayat.
In my view, therefore, the learned Sessions Judge was not right when he found that the order of the Magistrate was illegal and void deserving to be set aside on the ground of want of jurisdiction.
(9) Before concluding it must also be observed that if the learned Sessions Judge was of the view that the Magistrate should have transferred the proceedings to a Panchayat, then instead of just acquitting the respondents the lower appellate Court should itself have passed the necessary order transferring the proceedings to a Panchayat after setting aside the order of the Magistrate. It is clear that whatever order the Magistrate could pass, the appellate Court while dealing with the appeal was also fully competent to pass. It is, however, unnecessary to pursue this matter any further.
(10) For the reasons given above, the appeal is allowed, the order of the learned Sessions Judge acquitting the respondents set aside and the case sent back to the lower appellate Court for decision of the appeal on the merits. The parties have been directed to appear before the learned Sessions Judge on 8-6-1959 when another date would be given for further proceedings.
Falshaw, J.
(11) I agree.
(12) Appeal allowed.