Report No. 114

6.3. Criminal Jurisdiction.-

The very suggestion of conferment of criminal jurisdiction upon Gram Nyayalaya has evoked in some quarters strong resentment and confrontation. Avoiding repetition, it must be stated that this again is a hangover of the past. When Nyaya Panchayat was exclusively manned by the elected representatives of village community, i.e. all lay judges, there was serious reservation in the matter of conferment of criminal jurisdiction on such untrained persons. Extreme views were propounded in the Workshops as well as in written memoranda submitted to the Commission in the matter of conferment of criminal jurisdiction on Gram Nyayalaya.

At the one end of the spectrum, there were votaries in favour of total denial of criminal jurisdiction being conferred on Gram Nyayalaya. Some advocated that limited jurisdiction to try cases in which upon conviction, a sentence of fine, say not exceeding Rs. 200, may be conferred. They were in favour of adopting the approval of the Study Team on Nyaya Panchayat.1 Some participants canvassed the view that the Gram Nyayalaya should have the power to try offences in which substantive sentences extending upto 7 years can be imposed upon the accused.

Article 21 of the Constitution provides that "No person shall be deprived of his life or personal liberty except according to the procedure established by law." Article 22 provides that "every person who is arrested or detained in custody, shall be produced before the nearest Magistrate within a period of 24 hours of such arrest". Our Constitution further guarantees that the person arrested or detained is entitled to consult and be defended by a legal practitioner of his choice.

A criminal convectioft is likely to result in the deprivation of personal liberty and as provided in Article 21 any procedure by which a person can be deprived of his personal liberty must be in tune with the recent trend of decisions commencing from Menaka Gandhi v. Union of India, AIR 1978 SC 597 and A.R. Roy v. Union of India, AIR 1982 SC 710. In the past, minimal criminal jurisdiction was conferred on Nyaya Panchayat, under which it could at the highest impose a fine of Rs. 50. That should not deter the present Commission from examining the question de-novo and in all its ramification.

A conviction for an offence attaches a stigma to the offender. Even when he suffers the sentence, and repays his debt to the society, the stigma is not washed out but haunts him and his family for a long time. Therefore, a view gained ground that a legally trained experienced person would alone be competent to try the case and record conviction and impose sentence. It is too serious a matter, it was said, to be left to untrained lay persons. Undoubtedly, this is a matter of serious consideration. What is the present situation? A Munsif Magistrate of the First Class can at present try cases which are triable by him as provided in the Code of Criminal Procedure, 1973. A Munsif Magistrate of the First Class can impose sentence not exceeding 3 years or of fine not exceeding Rs. 5,000 or both. [See section 29(2) of that Code ].

Now if a Munsif Magistrate alone can try cases with power to impose substantive sentence not exceeding three years, the Commission sees no justification for whittling down this jurisdiction only because the presiding Panchayati Raj Judge who is equal, if not more competent than a Munsif Magistrate, will have two lay judges and three of them would constitute the Gram Nyayalaya. Therefore, shedding the apprehensions of the past, and keeping in view the mandate of Article 21 and bearing in mind the fact that the Gram Nyayalaya is to be manned amongst others by a Panchayati Raj Judge, who would be of the level of Munsif Magistrate, the Commission is of the firm view that the Gram Nyayalaya must have jurisdiction to try all offences which can be tried under the Code of Criminal Procedure, 1973, by the Judicial Magistrate First Class.

Is the Commission charting a hazardous course in enlarging criminal jurisdiction of the Gram Nyayalaya? Is it likely to be abused? Is the village community being exposed to grave risk of injustice? The answer unquestionably is in the negative. The Presiding Officer equipped with legal training would provide an effective guidance to the lay judges constituting the Court along with him. The trial will be, to be presently mentioned, according to the procedure prescribed in the Code of Criminal Procedure, 1973, for trial of summons cases and warrant cases as the case may be. That ensures fair procedure.

The Panchyati Raj Judge ensures basic knowledge of criminal law to the same extent available at present in the person of Munsif Magistrate. He will ensure fundamentals of criminal trial such as the presumption of innocence, the burden of proof and the benefit of doubt. The two lay judges would widen the vision of the presiding judge in the matter of the behaviour, truthfulness or waywardness of witnesses and complainants coming from rural areas. There will thus be inter-action of technocrat on one hand and experienced people in the ways of village life, on the other both of which would produce unquestionably sound decision. Any comparison with the Nyaya Panchayat in the past in this background is utterly unjustified.

Further in the trial of criminal cases, the law plays a secondary .role. The emphasis is on behavioural pattern, how in a given situation a man of common sense would act, whether the narration of a witness is truthful or he is prevaricating and while determining the quantum of sentence, the circumstances both mitigating or aggravating the crime, can be better appreciated by a body composed of technocrat and lay persons. Therefore, having regard to all the aspects of the matter, the Commission is of the opinion that the Gram Nyayalaya will have jurisdiction to try all offences at present triable by the Judicial Magistrate, First Class under the Code of criminal Procedure, 1973, as also to impose the sentence which a Judicial Magistrate of First Class is competent to impose.

1. Report of the Study Team on Nyaya Panchayat, Chapter, IX, para. 13, p. 80.