Judgment:
M. Srinivasan, C.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 & Anr., 1996(2) S.L.J. 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.
3. 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 Suffice it to point out that the Himachal Pradesh Panchyati Raj Act, 1968 (Act 19 of 1970) was repealed by the Himachal Pradesh Panchayati Raj Act, 1994 (Act 4 of 1994).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.
4. 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 Gov- ernment 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 cognizable 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.'
5. Insofar as Section 32 is concerned, Sub-section (1) expressly refers to offences mentioned in Schedule-Ill or declared by the 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.
6. Now, turning to Section 35, it is seen that it uses the expression criminal case pending before a Magistrate'. It is not the same expression as used in Section 32. Expression 'criminal case' has to be understood in the light of the definitions contained in Section 2 of the Act. Section 2(6) defines a 'case' as meaning 'criminal proceedings' in respect of an offence triable by a Gram Panchayat. Section 2(32) defines 'proceedings' as meaning a revenue matter triable by a Gram Panchayat. If the definition under Section 2(6) is applied to the expression 'criminal case', it follows automatically that an application for maintenance under Section 125 of the Code of Criminal Procedure is not a criminal case as contemplated by Section 35. A criminal proceeding in respect of an offence triable by a Gram Panchayat mentioned in Section 2(6) can only refer to an offence set out in Section 32(1). Such offences mast be mentioned in Schedule-Ill of the Act or declared by the State Government to be cognizable by a Gram Panchayat. It cannot be by any stretch of imagination contended that the provisions of Sub-section (2) of Section 32 would amount to a declaration by the State Government. Legislation cannot in any sense be a declaration by the Govemment as such. Hence the proceedings contemplated under Section 35 cannot relate to the provisions under Section 32(2), which deals with an application for maintenance.
7. It should also be seen that Section 34 refers only to a case, suit or proceeding. We have already seen that the expression 'case' has been defined in Section 2(6). 'Proceedings' is defined in Section 2(32). 'Suit' is also defined in Section 2(43) as a civil suit triable by a Gram Panchayat. It cannot be said that an application for maintenance under Section 125 of the Code of Criminal Procedure is a case, suit or proceeding within the meaning of Section 34 of the Act. In such circumstances, there is no substance in the contention that a proceeding pending before a Judicial Magistrate under Section 125 of the Code of Criminal Procedure shall be transferred to a Gram Panchayat on the passing of Act 4 of 1994.
8. The matter is not res Integra. It is seen that there are at least three decisions of this Court under the provisions of earlier Himachal Pradesh Pan- chayati Raj Act, 1968, as amended by Himachal Pradesh Panchayati Raj (Amend- ment) Act, 1977 (Act No. 1 Oof 1978). Before referring to the decisions, it is necessary to refer to the corresponding sections in the said Act.
9. Section 196 corresponds to the present Section 32. Section 196 read as follows:
'196. Offences cognizable by Gram Panchayat-(1) Offences men- tioned in Schedule II 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 and attempts to commit such offences shall be cognizable by such Gram Panchayat.
(2) Application for maintenance under Section 125 of the Code ofCriminal Procedure, 1973 (2 of 1973), shall be heard and decided by the Gram Panchayat. A Gram Panchayat may grant a maintenance allowance not exceeding one hundred rupees per month on such application without prejudice to any other law for the time being in force in this behalf.'
There is only one difference in Sub-section (1). While Section 196 refers to Schedule-II of that Act, the present Act refers to Schedule-III of this Act. In Sub- section (2), there is one change, that is, the jurisdiction of the Gram Panchayat to grant maintenance has now been enhanced to Rs. 500/- from Rs. 100/- per month, which was provided in Sub-section (2) of Section 196 of the old Act.
10. Section 198 corresponds to Section 34 of the present Act. Section 198 was in the following terms :
'198. Cognizance of Suits.-No Court shall take cognizance of any case or suit which is cognizance under this Act by a Gram Panchayat established for the area to which the suit relates unless an order has been passed under Section 229.'
There is one change introduced by the present section. Tine expression 'proceed- ing' is also included in Section 34, whereas it was missing in Section 198.
11. Section 199 corresponds to Section 35 of the present Act. Section 199 was in the following terms :
'199. Transfer of criminal proceedings to the Gram Panchayat in certain cases.-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.'
There is no change whatever in the language of the section.
12. Before the amendment introduced by Act No. lOof 1978, the original Act contained similar provisions with regard to jurisdiction of Nyaya Panchayat instead of Gram Panchayat. Section 203 sets out the offences cognizable by the Nayaya Panchayat It corresponded to Section 196, set out above. The only difference being that the expression 'Nyaya Panchayat' was used instead of Gram Panchayat. Section 206 corresponded to Section 198 and Section 207corresponded to Section 199.
13. The aforesaid Sections 203 and 206 came up for consideration before this Court in Shri Padam Singh v. Smt. Kanta, (1973) I.L.R. H.P. 993. Justice Tripathi after setting out the relevant sections observed as follows :
'Section 206 provides that no Court shall take cognizance of any case or suit which is cognizable under this Act by a Nyaya Panchayat established for the area to which the suit relates unless an order has been passed under Section 238 of the Act. A reading of Sections 203 and 206 together with the definition of suit and offences as given in this Act makes it evident that the jurisdiction of the Court is banned to take cognizance only when it is a criminal case or a civil suit triable by the Panchayat. It is well settled that an application claiming maintenance under Section 488 of the Code of Criminal Procedure is neither a criminal case nor a civil suit. Section 488 of the Code of Criminal Procedure vests jurisdiction in the Magistrate for entertaining and disposing of an application for maintenance by the wife. The Himachal Pradesh Act gives a concurrent jurisdiction for the disposing of such an application and granting a maintenance allowance not exceed ing one hundred rupees per month to the Nyaya Panchayat. As it is not a case, such an application is neither a criminal case nor a civil suit. Section 206 does not bar the jurisdiction of the Magistrate to entertain and dispose of such an application. In fact Sub-section (2) of Section 203 which vests the concurrent jurisdiction in tine Nyaya Panchayat itself provides that jurisdiction has been vested in the Panchayat 'without prejudice to any other law for the time being in force in thisbehalf.lt appears that by making provision under Sub-section (2) of Section 203 for a Nyaya Panchayat to entertain and decide an application for maintenance upto one hundred rupees per month only, the Legislature did not intend to bar the jurisdiction of the Magistrate in such a case which was vested in him under Section 488 of the Code of Criminal Procedure.'
14. The same view was taken by Justice Chet Ram Thakur in ShriBhagwant v. Smt Shyam Devi. That decision was reported in I.L.R. (H.P.) 1972 page 245. Both the judgments have been referred to with approval in Goverdhan Dass v. Stnt. Bhagtnatu & Anr., by a Division Bench comprising Justice D.B. Lal and Justice Chet Ram Thakur. That judgment is reported in (1975) I.L.R. H.P. 127. The relevant passages in the judgment read as follows :
'From the reading of Sub-section (2) of this section it would follow that application for maintenance under Section 488 of (the Code of Criminal Procedure shall be heard and decided by the Nyaya Panchayat. Further the Nyaya Panchayat may grant a maintenance allowance not exceeding one hundred rupees per month on such application) without prejudice to any other law for the time being in force in this behalf. Therefore, what follows from this section is that a Nyaya Panchayat shall hear and decide the cases with respect to maintenance, but the Nyaya Panchayat is precluded from granting a maintenance allowance exceeding one hundred rupees. Therefore, the necessary corollary is that if any maintenance in excess of Rs. 100/- is claimed then the party shall have to approach the Magistrate because the Nyaya Panchayat has no power to grant the maintenance exceeding one hundred rupees per month. Further it is apparent from the reading of this sub-section that if there is any other law which provides for grant of maintenance then the jurisdiction of that Courtis also not barred because it says that a Nyaya Panchayat may grant a maintenance allowance not exceeding one hundred rupees on such application without prejudice to any other law for the time being in force in this be/raZ/(emphasis mine). Under Section 488 of the Code of Criminal Procedure a Magistrate First Class or a District Magistrate has also been given the jurisdiction to grant maintenance allowance. Therefore, it would follow that the Magistrate and the Nyaya Panchayat are both competent to entertain and take cognizance of an application for grant of maintenance under Section 488 of the Code of Criminal Procedure. However, where the maintenance is claimed below one hundred rupees then necessarily the case may go to the Nyaya Panchayat. But that does not mean that Magistrate of a First Class is precluded from entertaining any such application even for maintenance below one hundred rupees.'
'9. Under Section 206, it is undoubtedly the Nyaya Panchayat which has got the jurisdiction to take cognizance of a criminal case or a civil case which is triable by the Nyaya Panchayat. But as has been held by me as also by Tripathi, J., in Shri Bhagwant v. Smt. Shyam Devi and Shri Padam Singh v. Smt. Kanta, respectively, the proceedings under Section 488 of the Code of Criminal Procedure do not either fall within the purview of a criminal case or a civil suit. Section 488 of the Code of Criminal Procedure vests jurisdiction in the Magistrate for entertaining and disposing of an application for maintenance as already stated above and Section 203(2) also gives a concurrent jurisdiction for grant of maintenance under Section 488 of the Code of Criminal Procedure to the Magistrate as also to the Nyaya Panchayat where the allowance does not exceed one hundred rupees per month. Therefore, in my opinion, in so far as the two authorities are concerned, there does not appear to be any conflict, because in Shri Bhagwant's case (supra) there was only the question of transfer under Section 526 of the Code of Criminal Procedure wherein a casual remark was made and moreover in that case the amount claimed did not exceed one hundred rupees and in the later case decided by Tripathi, J., there is nothing as to what was the amount claimed. However, it is quite apparent that the point was directly involved in that case whether the Nyaya Panchayat has got the exclusive jurisdiction to entertain and dispose of an application under Section 488 of the Criminal Procedure Code and, he, therefore, held that the Nyaya Panchayat as also the Magistrate have got concurrent jurisdiction where the amount of maintenance does not exceed one hundred rupees. But in so far as the claim exceeding one hundred rupees is concerned, I am of the view, as in the present case, the Magistrate had the jurisdiction because it is the amount which determined the Forum.'
15. Thus the question, which has been referred to us, has already been concluded by the judgment of the Division Bench, referred to above. We do not find any reason whatever to differ from the view taken by the Division Bench in th aforesaid case. In fact, our reasoning given in the earlier part of this judgment is similar to that of the Division Bench in the aforesaid case.
16. In such circumstances, we have no hesitation to hold that the Judicial Magistrate before whom a proceeding under Section 125 of the Code of Criminal Procedure is pending has not lost jurisdiction by virtue of the passing of the H.P. Panchayati Raj Act No. 4 of 1994 and there is no necessity whatever for transferring the said proceeding to the Gram Panchayat.
17. We must also add that there is no express provision in Act No. 4 of 1994 taking away the jurisdiction of the Judicial Magistrate or conferring exclusive jurisdiction on the Gram Panchayat. In such circumstances, there is no warrant to accept the contention of the petitioner that Judicial Magistrate has no jurisdic- tion and that pending proceedings should be transferred to the Gram Panchayat.
18. It follows, that the view expressed by Justice Vaidya in Hari Devi v. Bhagat Singh & Anr., 1996(2) S.L.J. 1625, is not good law not only because we have taken a different view in this case but also because it runs counter to the decision of the Division Bench in Goverdhan Dass v. Smt.Bhagmatu & Anr., (1975) I.L.R. H.P. 127.
19. In this case, as regards the merits the learned Single Judge has held against the petitioner and found that there was no merit whatever in the case. Hence, the petition fails and is dismissed. There will be no order as to costs.