ORDER :- This is a revision by the accused against the order of the Additional District Magistrate (Judicial) Bareilly dated 31st July, 1964 passed in a criminal revision filed by the complainant before him.

2. Briefly stated the facts of the case are that a charge-sheet dated 10-8-63 submitted by the Police under Section 332 I. P. C. against the accused was received in the court of the Judicial Magistrate (City), Bareilly on 24-4-64, which was duly recorded in the order sheet. The Magistrate registered the case. However, before he could issue summons of warrant, the accused made their appearance in court on that very date. They were accordingly supplied copies of the documents referred to in Section 173 Cr. P. C. The Magistrate then fixed 5-5-64 for the statement of the accused and framing of the charge.

3. On 5-5-64 the Magistrate, after hearing the parties, came to the conclusion that at the time of the occurrence the complainant was not engaged in the discharge of his public duties and as such no case under Section 332 I. P. C. was made out. He further found that an offence under Section 323 I. P. C. simpliciter prima facie existed against the accused. Therefore, by his order of that date the Magistrate directed the case to be sent to the Nyaya Panchayat concerned, inasmuch as this offence was exclusively triable by the Nyaya Panchayat.

4. It appears that before the record of the case could be transmitted to the Nyaya Panchayat, the accused went up in revision before the Additional District Magistrate (Judicial) who sent for the record. However by his order dated 31-7-64 he dismissed the revision. But in the operative portion, he observed as follows :

"Considering the circumstances of the case, however, it would in my opinion be better if the case is tried by a regular court instead of being sent to Nyaya Panchayat. The case having been instituted in the court of a Magistrate it is not obligatory for him to transfer it to the Nyaya Panchayat and he is competent to try the case himself. The file is sent back to the court of Judicial Officer City and the parties are directed to appear before him on 7-8-1964."

When the parties appeared before the Judicial Officer City on 7-8-64, the statement of the accused was recorded. The accused persons then came up in revision before this Court and obtained an order dated 20-8-64 staying further proceedings meanwhile.

5. The main contention of Mr. Gopal Behari is that after having dismissed the revision by his order dated 31-7-64, the Additional District Magistrate (Judicial) had no jurisdiction to direct the Judicial Officer City not to transfer the case to the Nyaya Panchayat but to retain and try the same himself. I think there is considerable force in this contention.

6. On behalf of the applicants reliance has been placed upon the provisions of Sections 52 and 55 of the U. P. Panchayat Raj Act. Section 52 provides that, inter alia, an offence under S. 323, I. P. C., if committed within the jurisdiction of a Nyaya Panchayat, shall be cognizable by such Nyaya Panchayats. On the other hand, Section 55 (1) of the said Act provides that where a Nyaya Panchayat has been established "no court, except as otherwise provided in this Act shall take cognizance of any case triable by such Nyaya Panchayat."

7. On the other hand learned counsel for the complainant has particularly drawn my attention to the provisions of sub-section (4) of Section 55 of the Act, which runs as under :

"Notwithstanding anything contained in Section 52 and Sub-sections (1) to (3) of this section but subject always to the provisions of the Code of Criminal Procedure, 1898, where any court has taken cognizance of any offence referred to in the said section and a summons or warrant, as the case may be, has issued for the appearance of the accused in such case, the offence may be enquired into and tried by such court."

The argument is that where a Magistrate has already taken cognizance of an offence referred to in Section 52 (1)

Click Here to Read the rest of this document