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Case Number

Criminal Ref. Nos. 30 and 31 of 1967

Advocates

For the Appellant: Revision in R. P. 27/67 R. P. 28/67 K. P. Radhakrishna Menon
For the Respondent: in R. P. 27/67 R. P. 28/67

Judges

K.K Mathew
M.U Isaac, JJ.

Acts

Prevention of Corruption Act 1947. Section 7 of the Criminal Law Amendment Act 1952
Section 74 of the Kerala Panchayats Act, 1960 (hereinafter referred to as the Act)
Rule 3 of the Kerala Panchayats (Trial of Offences by Magistrates) Rules 1964,
Section 190 of the Cr PC. A reference to Sections 5, 28 and 29
Section 6(1) of the Criminal Law Amendment Act, 1952.
CRIMINAL PROCEDURE CODE
provisions contained in Rule 3 of the Rules,
Section 15(2) of the U.P Private Forests Act
provisions of Section 190(1) of the Code
Section 165 of the Indian Penal Code
Section 28 of the Code. This Section
sub-section (1), clause (a) or clause (b),
Indian Penal Code (Act XLV of 1860)
Section 190(1)(c) of the Code,
section. Rule 3 of the Rules
CRIMINAL LAW AMENDMENT ACT
Clause (c) of Section 190(1)
offences.8. Sub-section (2)
Section 6(1) of that Act
Section 8(1) of this Act
sub-section (1), clause (c),
Section 36 of the Code
Rule 2(ii) of the Rules
Section 3 of the Rules,
Rule 3 of the Rules,
Rules.9. Section 28
Section 190(1)(c)
Section 4(1)(h)

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Smart Summary

Structured Summary of the Opinion delivered by Isaac, J.

Factual and Procedural Background

Two criminal complaints were filed by the Executive Officer of Nediviruppu Panchayat before the Sub-Divisional Magistrate (SDM), Malappuram, against two persons for failing to obtain licences under Section 96 of the Kerala Panchayats Act, 1960. The SDM took cognizance, tried the cases, and convicted and sentenced the accused. The convicted persons sought revision before the District Magistrate, Kozhikode, who referred the matters to this Court under Section 438 of the Criminal Procedure Code (Cr PC), recommending that the convictions be set aside in view of an earlier decision (1967 Ker LT 314). The reference to this Bench by Sadasivan, J. raised the principal question whether Rule 3 of the Kerala Panchayats (Trial of Offences by Magistrates) Rules, 1964 (as originally enacted, prior to the amendment of 14-12-1967), was valid.

The legal context includes: Section 74 of the Kerala Panchayats Act (recovery of arrears and prosecution as a mode), Section 129(2)(xxxix) (rule-making power as to the class of Magistrates by whom offences under the Act shall be tried), and Section 119 of the Act (persons empowered to prosecute and a saving of certain provisions of the Code). Rule 3 originally provided that "All offences against the Act or the Rules or bye-laws framed thereunder shall be tried by a Magistrate of Second Class." The Rule was later amended (14-12-1967) to add a proviso permitting a First Class Magistrate to try offences in Panchayat areas where no Second Class Magistrate had jurisdiction.

Legal Issues Presented

Whether Rule 3 of the Kerala Panchayats (Trial of Offences by Magistrates) Rules, 1964 (as it stood before the amendment of 14-12-1967) was valid.
Whether Rule 3 was repugnant to Section 190 of the Criminal Procedure Code and therefore void under Article 254 of the Constitution because the Kerala Panchayats Act was not reserved for the President's consideration.
Whether the saving provision in Section 119 of the Kerala Panchayats Act (protecting the power of certain Magistrates to take cognizance on information or on their own knowledge/suspicion) rendered Rule 3 ultra vires or inapplicable.
Whether a Sub-Divisional or First Class Magistrate could take cognizance and/or try Panchayat offences in an area where no Second Class Magistrate had been appointed (and whether, where he purported to take cognizance, he could transfer the case under Section 192 Cr PC).

Arguments of the Parties

Panchayat's Arguments

Section 119 of the Act protects the power conferred on Magistrates under Section 190 of the Cr PC to take cognizance of offences; therefore Rule 3, which purported to vest trial jurisdiction exclusively in Second Class Magistrates, is ultra vires Section 119.
Because the Act was not reserved for the President and did not receive Presidential assent, Rule 3 is repugnant to Section 190 of the Cr PC and hence void under Article 254 of the Constitution.
The Sub-Divisional Magistrate (SDM) had the power under Section 190(1)(c) Cr PC to take cognizance of the offences on information (or his own knowledge/suspicion), and having taken cognizance he should have been able to transfer the cases under Section 192 Cr PC to a subordinate Magistrate who could try them.
Where no Second Class Magistrate was appointed for a Panchayat area, the First Class Magistrate having jurisdiction over that area should be competent to take cognizance of and try the Panchayat offences.

The opinion does not set out, in a similarly structured way, a separate detailed statement of the opposing party's (State/Government) oral arguments; the Court's own counter-analysis appears in its reasoning and analysis below.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Viswanathan v. Akathethara Panchayat, 1967 Ker LT 314	Whether a First Class Magistrate was competent to try offences under the Kerala Panchayats Act in view of Rule 3.	The Court noted that in that decision it was held (on the authority of State of U.P. v. Sabir Ali) that such offences are triable only by a Second Class Magistrate; this earlier decision was affirmed as correct by the Bench in the present opinion.
State of U.P. v. Sabir Ali, AIR 1964 SC 1673	Authority applied in Viswanathan to hold that only a Second Class Magistrate could try certain offences.	Used as authority supporting the view (in Viswanathan) that offences under the Panchayats Act were triable only by a Second Class Magistrate; the Court treated that line of authority as underpinning the view upheld here.
Thankappan v. Ganapathy Iyer, 1967 Ker LT 309	Commentary on the drafting and scope of Section 119 of the Kerala Panchayats Act.	The Court relied on observations in that case describing Section 119 as poor drafting and clarifying that the saving in Section 119 refers to the power under Section 190(1)(c) Cr PC.
Channu Lal v. Rex, AIR 1949 All 692	Distinction between "information" and "complaint" and when a magistrate may treat a complaint as information under Section 190(1)(c).	The Court cited the passage to support that a Magistrate may treat an invalid complaint as "information" under Section 190(1)(c) but emphasized the limits to such treatment.
R.R. Chari v. State of U.P., AIR 1951 SC 207	What constitutes "taking cognizance" under Section 190: requires application of mind for the purpose of proceeding under subsequent provisions (e.g., Section 200).	The Court relied on this authority to hold that taking cognizance implies capacity to initiate proceedings under the Code, and that mere administrative or investigatory action does not amount to taking cognizance.
Superintendent & Remembrancer of Legal Affairs, West Bengal v. Abani Kumar Banerji, AIR 1950 Cal 437	Explains the correct approach to what constitutes taking cognizance.	Quoted (via R.R. Chari) for the proposition that a Magistrate must apply his mind for the purposes of specified procedural actions to be said to have taken cognizance.
Narayandas Bhagwandas v. State of West Bengal, AIR 1959 SC 1118	Reiterated principles on when cognizance is taken (citing Das Gupta, J.'s passage).	Cited to support the proposition that action not taken under the Chapter's procedural sections does not amount to taking cognizance.
Gopaldas v. State of Assam, AIR 1961 SC 986	Quoted the Das Gupta passage and emphasized that investigatory action (e.g., under Section 156(3)) is not taking cognizance.	Used to reinforce the Court's view that "taking cognizance" is limited to initiating statutory proceedings and presupposes the power to do so.
Jaddu v. State, AIR 1952 All 873	Suggested a different view that a Magistrate could take cognizance though not empowered to try the case.	The Court noted this contrary view but treated it as inconsistent with the reasoning adopted from the Supreme Court authorities; it did not follow Jaddu's approach.
Pancham Singh v. State, AIR 1967 Pat 416	Held (in the context of special judges under the Prevention of Corruption Act) that a Magistrate could take cognizance even if he could not try the case.	The Court discussed this authority as offering apparent support to the contrary view but rejected that approach for the present context, explaining why the analogy failed.
State v. Shankar, AIR 1959 Bom 437	Similar reasoning (in the context of special judges) that a Magistrate could take cognizance although he could not try the accused.	The Court considered the reasoning but found it unconvincing for the present legal question and rejected its extension to the Panchayat Rule 3 issue.
Bhim Sen v. State of Uttar Pradesh, AIR 1955 SC 435	Where special adjudicatory machinery is inadequate for a particular case, the jurisdiction of ordinary criminal courts may remain available.	The Court distinguished Bhim Sen on its facts and held it did not support the Panchayat contention that First Class Magistrates may try offences where no Second Class Magistrate has been appointed; the omission of executive action to appoint a magistrate does not alter the statutory allocation of jurisdiction.

Court's Reasoning and Analysis

The Court proceeded in a stepwise manner, addressing first the contention under Article 254 of the Constitution and then the contentions arising under Section 119 of the Kerala Panchayats Act and the Criminal Procedure Code.

1. Article 254 and Repugnancy with the Criminal Procedure Code

The Court treated the Criminal Procedure Code (Cr PC) as an "existing law" on a matter in the Concurrent List. It observed that Sections 5, 28 and 29 of the Cr PC permit offences under other laws to be tried subject to any enactment regulating the manner or place of trial imposed by such other law.
Section 5(2) Cr PC expressly subjects offences under other laws to the Code "but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences." Thus, if the State Act empowers the Government to make rules prescribing the class of Magistrates to try the offences, those rules are within the scope of the Cr PC and not repugnant to it.
Relying on Section 28 and Section 29 Cr PC, the Court concluded that a law creating a special or particular court for trial is not repugnant to the Cr PC but is consistent with it. Accordingly, Rule 3 was not void under Article 254 on the ground of repugnancy to the Cr PC.

2. Section 119 of the Kerala Panchayats Act and the Distinction Between Powers

The Court recognized Section 119's saving clause, which preserves "the power of certain Magistrates to take cognizance of offences upon information received or upon their own knowledge or suspicion" (a reference to Section 190(1)(c) Cr PC).
It carefully distinguished the separate functional powers of a magistrate under the Cr PC: (a) power to try cases (derived from constitution of a Court and Section 28), (b) power to commit cases for trial, and (c) power to take cognizance of offences under Section 190.
The Court examined the classification of ordinary and additional powers (Sections 36, 37 and the Third and Fourth Schedules of the Cr PC). It noted that taking cognizance under Section 190 is an ordinary power of District and Sub-Divisional Magistrates but an additional power for Magistrates of First, Second or Third Class unless specially empowered.
Rule 3, being a rule made under Section 129(2)(xxxix) of the Act, prescribes the class of Magistrates who shall try offences (i.e., constitutes the authority empowered to try). Section 119's saving of the power to take cognizance under Section 190(1)(c) and Rule 3 address different powers (taking cognizance vs. trial jurisdiction). Therefore, there is no necessary conflict between them.

3. Whether the Sub-Divisional Magistrate Had Lawful Cognizance or Could Transfer

The Court observed that a transfer under Section 192 Cr PC can only be to a Magistrate having the power to try the case. Where no Second Class Magistrate had jurisdiction over the Panchayat area, no subordinate Magistrate existed to whom the SDM could transfer the case for trial. Thus, transfer could not remedy the jurisdictional gap.
On the record, the Court found that the SDM did not take cognizance under Section 190(1)(c) Cr PC. Instead, he acted on complaints presented to him and proceeded as if taking cognizance under Section 190(1)(a). Taking cognizance under Section 190(1)(c) would have required compliance with Section 191 Cr PC (and other procedural requirements), which he did not observe.

4. The Meaning and Preconditions of "Taking Cognizance"

The Court surveyed Supreme Court authority (including R.R. Chari; Superintendent & Remembrancer v. Abani Kumar Banerji; Narayandas Bhagwandas; Gopaldas) and distilled the principle that "taking cognizance" means applying one's mind for the purpose of initiating proceedings under the specified procedural sections of the Cr PC (for example Section 200 and following). Actions purely investigatory or administrative (e.g., ordering investigation under Section 156(3) or issuing a search warrant) do not constitute taking cognizance.
From these authorities the Court concluded that a Magistrate must have the power to initiate proceedings (try or commit for trial) as a condition precedent to taking cognizance. A magistrate who lacks power to try or commit for trial cannot validly be said to have taken cognizance of the offence for initiating statutory proceedings.
The Court rejected contrary lines of authority that would permit a magistrate to take cognizance merely to forward the accused to a special judge or other court; it explained that such interventions do not amount to the magistrate's taking cognizance in the statutory sense because the magistrate lacks the requisite procedural capacity to initiate the statutorily-prescribed proceedings.

5. Distinguishing Bhim Sen and Concluding Validity of Rule 3

The Court considered Bhim Sen v. State of U.P., which held that where a special law fails to set up adequate machinery for trial in a particular factual situation, the ordinary criminal court's jurisdiction may remain. The Bench distinguished that case on its facts: Bhim Sen dealt with an absence of adequate machinery for specific cases, whereas the present statute and Rules had created a machinery (even if executive appointments of Second Class Magistrates had not been made in certain localities).
Accordingly, the Court held that the omission by the executive to appoint a Second Class Magistrate for some local areas does not nullify the statutory allocation of jurisdiction; the statutory Rule 3, as originally enacted, remains valid and limits trial jurisdiction to Second Class Magistrates.

Holding and Implications

Holding: The Court held that Rule 3 of the Kerala Panchayats (Trial of Offences by Magistrates) Rules 1964, as it stood before its amendment of 14-12-1967, is valid. The Court affirmed that the earlier decision in 1967 Ker LT 314 (Viswanathan v. Akathethara Panchayat) was correct.

Implications:

Direct effect on these cases: The references were accepted; the convictions and sentences passed by the Sub-Divisional Magistrate, Malappuram in S.T. Nos. 378 and 414 of 1966 were set aside. Any fines recovered pursuant to those convictions are to be refunded to the accused.
Scope of precedent: The Court's decision upholds the pre-amendment allocation of trial jurisdiction under Rule 3 and clarifies that the power to "take cognizance" under Section 190 Cr PC presupposes authority to initiate proceedings (try or commit). The opinion distinguishes and declines to follow authorities that would treat mere administrative/transmittal acts as taking cognizance in the statutory sense.
No broad new statutory principle beyond the interpretation and application of existing provisions was announced; the Court applied Supreme Court authorities and statutory text to resolve the reference and to affirm the existing line of local authority.

KSB

Result: Reference accepted; convictions and sentences set aside; fines, if recovered, to be refunded.

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State Of Kerala, In Re

The Judgment of the Court was delivered by

Isaac, J.:— These two cases have come before us pursuant to an order of reference made by our learned brother Sadasivan, J. The question arising for decision relates to the validity of Rule 3 of the Kerala Panchayats (Trial of Offences by Magistrates) Rules 1964, as it stood before its recent amendment as per Notification G.O.Ms 440/67.DD dated 14-12-1967.

2. We shall briefly state the circumstances under which the above references have been made. Section 74 of the Kerala Panchayats Act, 1960 (hereinafter referred to as the Act) provides for the recovery of arrear of tax, cess etc. due to a Panchayat; and prosecution of the defaulter before a Magistrate is one of the modes provided thereunder. Section 129 of the Act contains the rule-making power of the Government; and Section 129(2), clause (xxxix) reads as follows:—

“129(2). In particular, and without prejudice to the generality of the foregoing power, the Government may make rules—

(xxxix) as to the class of Magistrates by whom offences against this Act shall be tried;

3. The Kerala Panchayats (Trial of Offences by Magistrates) Rules 1964 (hereinafter referred to as the Rules) were made by the Government in exercise of the aforesaid power. Section 3 of the Rules, as it originally stood, read as follows:—

“All offences against the Act or the Rules or bye-laws framed thereunder shall be tried by a Magistrate of Second Class.”

4. Most of the offences under the Act and the several rules made thereunder are, according to the Second Schedule of the Criminal Procedure Code, triable by any Magistrate; and there are no offences which cannot be tried by a Magistrate of the Second Class. There are District Magistrates, Sub-Divisional Magistrates and Magistrates of the First and Second Classes in this State; and the State Government have defined the local areas within which such persons may exercise their powers. There are some local areas in the State for which the Government have not appointed any Second Class Magistrate, but only a First Class Magistrate. This is because under the third schedule to the Criminal Procedure Code, a First Class Magistrate has all the ordinary powers of a Second Class Magistrate, and there may not be sufficient work for both a First Class Magistrate and a Second Class Magistrate to function in the same local area. Then the First Class Magistrate would take cognizance of and try also Second Class Offences committed within his local limits. Accordingly, complaints in respect of offences under the Act or the rules made thereunder committed within the local limits of a first Class Magistrate, in respect of which there is no Second Class Magistrate, used to be filed before the First Class Magistrate; and he would take cognizance of the same and try and dispose of them. The question was raised before this Court in Viswanathan v. Akathethara Panchayat, 1967 Ker LT 314 whether, in view of Rule 3 of the Rules, a First Class Magistrate was competent to try an offence under the Act That case was decided by one of us; and it was held therein on the authority of the decision of the Supreme Court in State of U.P v. Sabir Ali AIR 1964 SC 1673 that such offences are triable only by a Second Class Magistrate, and that a First Class Magistrate was not competent to try them. Apparently, it was on the basis of this decision. Rule 3 was amended on 14-12-1967 by adding the following proviso thereto:—

“Provided that in the case of a Panchayat the area of which does not fall within the jurisdiction of any Second Class Magistrate, such offences shall be tried by a Magistrate of the First Class having jurisdiction over the Panchayat area.”

5. These references arise out of two complaints, which the Executive Officer of Nediviruppu Panchayat filed before the Sub-Divisional Magistrate, Malapu-ram, against two persons for failure to take out licences under Section 96 of the Act for conducting their respective trades within that Panchayat The learned Magistrate took cognizance of the offence, tried the cases and convicted and sentenced both the accused. They took the matter in revision before the District Magistrate, Kozhikode, who referred the cases to this Court under Section 438 of the Cr PC for passing necessary orders, with the recommendation that the conviction of the accused has to be set aside in the light of the decision of this Court in 1967 Ker LT 314. When the cases came before our learned brother, it appears that two contentions were advanced before him;

1. The power conferred on a Magistrate under Section 190 of the Cr PC to take cognizance of offences is protected by Section 119 of the Act; and so Rule 3 of the Rules, which conferred jurisdiction exclusively in the Second Class Magistrates, is ultra vires of the provisions contained in the above section.

2. The Act has not been reserved for the consideration of the President; and his assent thereto has not been received. Rule 3 of the Rules, as it is repugnant to Section 190 of the Cr PC, is therefore void under Article 254 of the Constitution.

6. Adverting to the above contentions, out learned brother said:—

“It is this power conferred on the Magistrates that is protected under Section 119 of the Act and in view of that it is argued that the Rule is ultra vires and cannot have any binding force. It is also argued that under Article 254(2) of the Constitution a State law of this nature can prevail, only if it receives the assent of the President; but the Panchayat Act has not received the assent of the President The question is not seen to have been approached in this perspective in the Single Bench decision at this Court in 1967 Ker LT 314. I should, therefore, think that for an authoritative pronouncement in the matter, this has to go before a larger Bench.”

7. We shall first deal with the contention based on Article 254 of the Constitution. This Article reads:—

“Inconsistency between laws made by Parliament and laws made by the Legislatures of States.—

(1) If any provision of law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of any existing law with respect to one of the matters enumerated in the concurrent List, then, subject to the provisions of clause (2), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void.

(2) Where a law made by the Legislature of a State with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State:

Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State. We shall assume that the Act has not been reserved for the consideration of the President, and his assent thereto was not received. The Criminal Procedure Code is an existing law with respect to one of the matters enumerated in the Concurrent List Therefore any provision in the Act or the rules made thereunder, if it is repugnant to any provision in the Criminal Procedure Code, would be void to the extent of the repugnancy. The argument was that the Criminal Procedure Code empowers a Magistrate competent to try an offence to take cognisance of the same and try it, and that accordingly a First Class Magistrate is competent to take cognizance of any Panchayat offence and try it but Rule 3 of the Rules provides that a Second Class Magistrate alone would be competent to take cognizance of or try such an offence. It was, therefore, submitted that the rule is repugnant to the provisions of the Criminal Procedure Code, and hence void. Particular reliance was made in support of this argument on Section 190 of the Cr PC. A reference to Sections 5, 28 and 29 of the Cr PC is sufficient to repeal the above argument Section 5 reads as follows:—

“Trial of offences under Penal Code.—

(1) All offences under the Indian Penal Code (Act XLV of 1860) shall be investigated, inquired into, tried and otherwise dealt with according to the provisions hereinafter contained.

Trial of offences against others laws.—

(2) All offences under any other law shall be investigated, inquired into, tried and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.”

8. Sub-section (2) clearly provides that all offences under any law other than the Indian Penal Code shall be tried and otherwise dealt with according to the provisions of the Criminal Procedure Code, subject to any enactment regulating the manner or place of trying or otherwise dealing with such offences. So, regarding offences under the Act, the provisions of the Criminal Procedure Code would apply to the manner and place of trial of said offences, only subject to the provisions of the Act or the Rules thereunder. If the Act empowers the Government to make rules as to the class of Magistrates by whom offences thereunder shall be tried, and if in exercise of that power, the Government made rules, prescribing the class of Magistrates who shall try such offences, the provisions of the Criminal Procedure Code would yield to the said provision contained in the Rules.

9. Section 28 of the Cr PC mentions the Courts by which offences under the Indian Penal Code may be tried. Section 29 deals with place of trial of offences under other laws; and it reads:—

“Offences under other laws.— (1) Subject to the other provisions of this Code, any offence under any other law shall, when any Court is mentioned in this behalf in such law, be tried by such Court

(2) When no Court is so mentioned, it may be tried by the High Court or subject as aforesaid by any Court constituted under this Code by which such offence is shown in the eighth column of the Second Schedule to be triable.”

10. This section provides that offences under laws other than the Indian Penal Code shall, when any court is mentioned in such laws, be tried by that Court Therefore, a law creating a special or particular Court for the trial of offences under that law is not repugnant to the provisions of the Criminal Procedure Code; but it is in accordance with its provisions. Hence there is no merit in the contention that R. 3 of the Rules is void, on the ground of repugnance.

11. We now come to the attack on the rule based on Section 119 of the Act This section reads as follows:—

“Persons empowered to prosecute.— Save as otherwise expressly provided in this Act no person shall be tried for any offence against this Act or any rule or bye-law made thereunder unless complaint is made by the police, the executive authority or a person expressly authorised in this behalf by the Panchayat or executive authority within three months of the commission of the offence; but nothing herein shall affect the provisions of the Code of Criminal Procedure, 1898, in regard to the power of certain Magistrates to take cognizance of offences upon information received or upon their own knowledge or suspicion:”

(This section has a proviso; and it is not extracted here, being not relevant to the controversy).

12. This section came for comment in a decision rendered by one of us in Thankappan v. Ganapathy Iyer, 1967 Ker LT 309. There it was observed that it was a specimen of bad draftsmanship; and there was considerable difficulty to understand its true scope. The contention before us was based on the latter part of the section; and it was pointed out in the above decision that the reference therein to the power of certain Magistrates to take cognizance of offences is to the power vested in a Magistrate under Section 190(1)(c) of the Cr PC. Very elaborate arguments were addressed at the Bar on the interpretation of this section. We shall, therefore, quote it:—

“190. Cognizance of offences by Magistrates.— (1) Except as hereinafter provided, any Presidency Magistrate, District Magistrate or Sub-Divisional Magistrate, and any other Magistrate specially empowered in this behalf, may take cognizance of any offence—

(a) upon receiving a complaint of facts which constitute such offence;

(b) upon a report in writing of such facts made by any police-officer;

(c) upon information received from any person other than a police officer, or upon his own knowledge or suspicion, that such offence has been committed.”

(2) The State Government, or the District Magistrate subject to the general or special orders of the State Government, may empower any Magistrate to take cognizance under sub-section (1), clause (a) or clause (b), of offences for which he may try or commit for trial.

(3) The State Government may empower any Magistrate of the first or second class to take cognizance under sub-section (1), clause (c), of offences for which he may try or commit for trial.” The learned Counsel, who appeared for the Panchayat, first submitted that a Sub-Divisional Magistrate was empowered under the Criminal Procedure Code to take cognizance of a Panchayat offence under Section 190(1)(c) of the Code, that this power was specifically saved by the latter part of Section 119 of the Act, and that Rule 3 of the Rules which provides that such an offence shall be tried by a Magistrate of the Second Class, was repugnant to and inconsistent with the said part of the Section, and was, therefore, void. This contention cannot stand on a close scrutiny of some of the relevant provisions of the Code. Under the Code, a Magistrate has got various powers. One is a power to try cases, another is a power to commit cases for trial, and a third is a power to take cognizance of offences. Chapter II of the Criminal Procedure Code deals with the constitution of Criminal Courts. The power to try cases is derived by virtue of the constitution of a Court, and Section 28 of the Code. This Section reads:—

“Subject to the other provisions of this Code any offence under the Indian Penal Code may be tried—

(a) by the High Court, or

(b) by the Court of Session, or

13. So, if a person is appointed a First Class Magistrate, and if according to the eighth column of the Second Schedule of the Code, an offence is triable by a Magistrate of the First Class, he has the power to try it. But this is subject to the other provisions of the Code. The powers of a Magistrate are generally classified as ordinary powers and additional powers. Section 36 of the Code states that the various Magistrates shall have the powers specified in the Third Schedule of the Code; and such powers are called ordinary powers. Section 37 deals with additional powers; and they are enumerated in the Fourth Schedule. These are powers which a Magistrate can be invested with in accordance with the said schedule. Now if we examine these two schedules, it may be seen that a power to commit for trial under Sec. 206 is an ordinary power of a Magistrate of the First Class; whereas in the case of a Magistrate of the Second Class, it is an additional power with which he may be Invested by the State Government Again, the power to take cognizance of an offence under Section 190 of the Code is not one of the ordinary powers of a Magistrate of the First, Second or Third Class; but it is an ordinary power of a Sub-Divisional Magistrate and a District Magistrate. As regards a Magistrate of the First, Second or Third Class, this is an additional power with which he can be invested, subject to the provisions of the Fourth Schedule. It is, therefore, clear that the aforesaid powers are different What Section 129(2)(xxxix) of the Act has empowered the Government is to make Rules prescribing the class of Magistrates by whom offences under the Act shall be tried; in other words to constitute an authority empowered to try such offences. This is all what was done by the Rules; and Rule 3 prescribes that those offences shall be tried by a Magistrate of the Second Class. The second part of Section 119 of the Act only refers to the power of certain Magistrates to take cognizance of an offence under Section 190(1)(c) of the Cr PC; and that power is saved, notwithstanding anything contained in that section. Rule 3 of the Rules and the Second Part of S. 119 deal with different powers; and there cannot possibly be any conflict between the said two provisions.

14. The next contention of the learned counsel for the Panchayat was that a Sub-Divisional Magistrate has got the power to take cognizance of a Panchayat offence under Section 190(1)(c) of the Code; that, in the two cases with which we are concerned, the Sub-Divisional Magistrate, Malapuram has really taken cognizance of the offences complained of and that, if he has no jurisdiction to try the cases, he must transfer them under Section 192 of the Code to a Magistrate Subordinate to him for trial. This contention has so many difficulties for being accepted. In the first place, a transfer can only be to a Magistrate having the power to try the case. A Magistrate, who has no power to try a case, cannot get the authority to try it by the case being transferred to him under Section 192 of the Code. This proposition was not disputed. Rule 2(ii) of the Rules defines the term “Magistrate” as follows:—

““Magistrate” means the Magistrate having jurisdiction over the Panchayat area, and in the case of a Panchayat area comprised within the jurisdiction of more than one Magistrate, such Magistrate as may be authorised by the Sub-Divisional Magistrate having jurisdiction over the area.”

15. Admittedly, there is no Second Class Magistrate having jurisdiction over the area of the Panchayat from which these cases have arisen. So even assuming that the Sub-Divisional Magistrate is competent to take cognizance of the cases under Section 190(1)(c) of the Code, and that he has exercised that power, there is no scope for transferring the cases to a Magistrate having jurisdiction to try them. In other words, he is not able to take any action in the matter.

16. Secondly, it is not possible to accept the contention that the Sub-Divisional Magistrate has taken cognizance of these cases under Section 190(1)(c) of the Code. The facts are very clear from the records. The Executive Officer of the Panchayat filed complaints; and on the assumption and on the bona fide belief that he has got the power to take cognizance of the cases on the complaints, the learned Sub-Divisional Magistrate took cognizance, and tried them to take cognizance of them under S. 190(1)(c) was beyond his contemplation. What he did was something entirely different; and to say that he took cognizance of them under S. 190(1)(c) is to attribute to him something which he never did, though he could have done it. In 1967 Ker LT 309 it was observed by this Court:—

“Every complaint to a Magistrate is an information that an offence has been committed; but every such information may not amount to a complaint. So, under Section 190 of the Cr PC, a Magistrate can treat a complaint as an information, and take cognizance of the offence.”

17. The above observation has got support in the decision of a Division Bench of the Allahabad High Court in Channu Lal v. Rex, AIR 1949 All 692. The Court said:—

“In its ordinary sense “information” is a wider term and includes any communication relating to the commission of an offence. A complaint is a particular kind of information and is more or less formally made with the definite object that the person to whom the complaint is made will take action under the Criminal Procedure Code. “Information” is the genus of which a “complaint” is a specie. In Section 190(1)(c), however, the word “information” must be construed as referring to information which is not a valid complaint falling under clause (a) of that section. If a complaint is not a valid complaint, it does not cease to be an information and, therefore, can be treated as such under Clause (c) of Section 190(1) and it is open to the Magistrate to whom an invalid complaint is lodged to treat it as an information under Section 190(1)(c) of the Cr PC subject, of course, to the limitations imposed by Section 191 of the Cr PC, in this behalf.”

18. It is doubtful whether a complaint would be an invalid complaint, either because the person making the complaint is not competent to make it or the Magistrate before whom it is made is not competent to take cognizance of it or try the case. The question whether an allegation is a complaint must be decided on the basis of the definition of that term in Section 4(1)(h) of the Cr PC. Whatever that may be the Sub-Divisional Magistrate has not taken cognizance of the offence under Section 190(1)(c). If he did so, he was bound to act under Section 191 of the Code. He has not done so. What he did was to take cognizance under Section 190(1)(a), and try the cases, for either of which he had no power.

19. We now come to the question whether the Sub-Divisional Magistrate has power to take cognizance of a Panchayat offence under Section 190(1)(c) of the Code, though he has no power to try it. To a large extent, the answer to this question depends on the meaning of taking cognizance of an offence under the Criminal Procedure Code. There are a number of decisions of the Indian High Courts and the Supreme Court on this question. We shall refer only to a few decisions of the Supreme Court. In R.R Chari v. State of U.P, AIR 1951 SC 207, the question arose whether cognizance of an offence under Section 165 of the Indian Penal Code was taken by the Magistrate, when he issued a warrant for the arrest of the accused on the application of the police, or only when he issued a notice to the accused under Section 190 of the Cr PC for his appearance. The Court quoted the following passage from the judgment of Das Gupta, J., in Superintendent and Remembrancer of Legal Affairs, West Bengal v. Abani Kumar Banerji, AIR 1950 Cal 437 as stating the correct approach to the question:

“What is taking cognizance has not been defined in the Code of Criminal Procedure & I have no desire 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 Section 190(1)(a) of the Cr PC 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 the Chapter, proceeding under Section 200 and thereafter sending it for Inquiry and report under Section 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 Section 156(3). or issuing a search warrant for the purpose of the investigation, he cannot be said to have taken cognizance of the offence.”

20. Then the Court said:—

“In the present case, on 25-3-1949, the Magistrate issued a notice under Section 190 of the Cr PC against the appellant and made it returnable on 2-5-1949. That clearly shows that the Magistrate took cognizance of the offence only on that day and acted under Section 190 of the Cr PC.”

21. In Narayandas Bhagwandas v. State of West Bengal, AIR 1959 SC 1118 and in Gopaldas v. State of Assam, AIR 1961 SC 986, the Supreme Court again quoted the above passage from the judgment of Justice Das Gupta as stating the correct law. In the latter case, it adds:—

“It would be clear from the observations of Mr. Justice Das Gupta that when a Magistrate applies his mind not for the purpose of proceeding under the various sections of Chapter XVI. but for taking action of some other kind, e.g, ordering Investigation under Section 156(3) or issuing a search warrant for the purpose of investigation, he cannot be said to have taken cognizance of any offence.”

22. It appears to us on the authority of the statements of law contained in the above decisions that taking cognizance of an offence can only be for the purpose of initiating legal proceedings under any of the provisions of the Code. If a Magistrate has no power to take any proceedings in respect of an offence brought to his notice, he is not competent to take cognizance of that offence. Taking notice of the commission of an offence and keeping the matter to himself without being able to take any action thereon for want of power, would not amount to taking cognizance. In other words, the power to initiate proceedings against a person accused of an offence, is a condition precedent for taking cognizance of an offence. A Magistrate, who has no power to try a person charged with an offence or to commit him for trial, is not competent to take cognizance of that offence. There is an observation in the judgment of a learned Single Judge of the Allahabad High Court in Jaddu v. State, AIR 1952 All 873 which seems to take a contrary view. The learned Judge said:—

“It seems to me that Section 529(e) is applicable only if the Magistrate is not empowered to take cognizance of the offence in question. A perusal of Section 15(2) of the U.P Private Forests Act shows that what is barred under it is not the cognizance of the offence by a Magistrate of the First Class, but a trial of the same by him. A First Class Magistrate could take cognizance of the offence, but he could not proceed to try it.”

23. A decision of a Division Bench of the High Court of Patna in Pancham Singh v. State, AIR 1967 Pat 416 and another decision of a Division Bench of the High Court of Bombay in State v. Shankar, AIR 1959 Bom 437 seem to give some apparent support to the above view. Both of them were cases which arose under the Prevention of Corruption Act 1947. Section 7 of the Criminal Law Amendment Act 1952 provided that notwithstanding anything contained in the Criminal Procedure Code, offences mentioned in Section 6(1) of that Act shall be triable only by special Judges appointed thereunder. Section 8(1) of this Act provides that a Special Judge may take cognizance of offences without the accused being committed to him for trial. Section 8(3) provides that the Court of the Special Judge shall be deemed to be a Court of Session. The question arose in the above two decisions whether a Magistrate, who was empowered to take cognizance of offence under Section 190(1) of the Cr PC, was entitled to take cognizance of offences mentioned in Section 6(1) of the Criminal Law Amendment Act, 1952. Both Courts held that there was nothing to show that the provisions of Section 190(1) of the Code have been amended by the Criminal Law Amendment Act and that the Magistrate was entitled to take cognizance of such offences, even though he had no jurisdiction to try the accused for the said offence. It was, however, pointed out in those decisions that all that the Magistrate taking cognizance of such an offence can do is to send the accused to the Special Judge for trial Then the Special Judge may take cognizance of it and try the accused. With great respect we find it difficult to accept the above view. It did not require a magistral intervention for the Special Judge to take cognizance of the offence. What the Magistrate does in such a case is what the police itself could and should have done. The act of the Magistrate in sending the accused to the Special Judge for taking cognizance of the offence and trying the case cannot amount to taking cognizance of the offence by the Magistrate himself. If it were that a Magistrate, who has no jurisdiction to try an accused or commit him for trial for an offence, could take cognizance of an offence, a Magistrate of the third class on whom the additional power of taking cognizance of offences under Section 190 is conferred, can take cognizance of a first class offence. But it was conceded correctly that it was not possible; and the only reason for that, as far as we can see, is that the power to take cognizance of an offence presupposes the existence of a power to take some proceedings as provided in the Criminal Procedure Code against the person charged with the said offence. We, therefore, hold that a Magistrate, whose power to take cognizance of an offence under Section 190(1)(c) is saved by the second part of Section 119 of the Act is a Magistrate, who has jurisdiction to try the offences mentioned in Section 119 of the Act. It follows therefrom that, in view of the provisions contained in Rule 3 of the Rules, no Magistrate other than a Second Class Magistrate has power to take cognizance of any of the said offences upon information received or upon his own knowledge or suspicion.

24. It was lastly contended by the learned Counsel for the Panchayat, that the Rules have no application to a Panchayat area, which does not fall within the jurisdiction of any Second Class Magistrate. In other words, if there is no Second Class Magistrate having jurisdiction over a Panchayat area, the First Class Magistrate having jurisdiction in that area can take cognizance of and try the Panchayat offences committed within the area of that Panchayat. The argument was based on the decision of the Supreme Court in Bhim Sen v. State Of Uttar Pradesh AIR 1955 SC 435. In that case, a few persons were prosecuted for the offence of theft before a Railway Magistrate. The U.P Panchayat Raj Act, 1947, provided, among other things, that certain offences including thefts committed within the jurisdiction of a Panchayat Adalat shall be cognisable by such Adalat The Rules made thereunder provided for the constitution of the Adalats in cases where the accused were residents of the same district as well as different districts. But in the case which came before the Supreme Court one of the accused belonged to Madhya Pradesh. Neither the U.P Panchayat Raj Act nor the Rules made thereunder provided for the constitution of the Adalat for trial of such a case. It was, however, contended in that case that the trial of the appellant by the Railway Magistrate was without jurisdiction. In rejecting the above contention the Court said:—

“In the present case in which at least one of the accused (though not this very appellant) is a person coming from an area outside the local extent of the Act any bench of the Adalat that can be validly formed thereunder cannot try the three accused together and hence can have no jurisdiction over the whole case. The jurisdiction of the regular Criminal Court in respect of such a case cannot be taken away by the operation of Section 55 of the Act. It is to be remembered that the jurisdiction of the Criminal Courts under Section 5 of the Cr PC is comprehensive.

25. That section enjoins that all offences under the Penal Code shall be investigated, enquired into, tried and otherwise dealt with “according to the provisions hereinafter contained”. To the extent that no valid machinery is set up ??? the U.P Panchayat Raj Act for the trial of any particular case the jurisdiction of the ordinary Criminal Court under Section 5 of the Cr PC cannot be held to have been excluded. Exclusion of jurisdiction of a Court of general jurisdiction, can be brought about by the setting up of a Court of limited jurisdiction, in respect of the limited field, only if the vesting and the exercise of that limited jurisdiction is clear and operative. Where, as in this case, there is no adequate machinery for the exercise of this jurisdiction in a specific case, we cannot hold that the exercise of jurisdiction in respect of such a case by the Court of general jurisdiction is illegal.”

26. The learned Counsel made special emphasis on the last three sentences appearing in the above passage, and contended that in so far as machinery has not been set up by the State Government for trial of Panchayat offences in any Panchayat area as provided by Rule 3 of the Rules, the jurisdiction of the ordinary Criminal Court under Section 5 of the Cr PC cannot be held to have been excluded, and that the First Class Magistrate would have jurisdiction to try offences committed in such an area. The above sentences have to be read in the light of the facts of the case and in the context in which they appear. That was a case, where the special law did not provide a machinery for the trial of certain types of cases, and not one where the State Government did not create a machinery in accordance with the law. Here the Act and the Rules have created a machinery for the trial of Panchayat offences committed within the areas of the Panchayats. Under Section 5 of the Cr PC, the provisions thereof yield only to any other law regulating the manner, place of trial etc. The omission to take executive action pursuant to the special law is irrelevant. We therefore, hold that the above decision has no application to this case, and that the contention of the learned Counsel that a First Class Magistrate is competent to try Panchayat offences in Panchayat areas, where no Second Class Magistrate has been appointed, cannot be sustained.

27. In the result we hold that Rule 3 of the Kerala Panchayats (Trial of Offences by Magistrates) Rules 1964, as it stood before its amendment made on 14-12-1967, is valid, and that the decision of this Court in 1967 Ker LT 314 is correct. We accordingly accept the references made by the District Magistrate and set aside the conviction of the accused and the sentences passed against them by the Sub-Divisional Magistrate, Malapuram in S.T Nos. 378 and 414 of 1966. The amounts of fines, if recovered from the accused pursuant to the decisions in the above cases, will be refunded to them.

KSB

28. Reference accepted; Convictions and sentences set aside.

State Of Kerala, In Re

Structured Summary of the Opinion delivered by Isaac, J.

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Panchayat's Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

State Of Kerala, In Re

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