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1955 DIGILAW 129 (PAT)

Ramdutt Singh v. Gram Kutchery Of Naudiha

1955-11-11

BANERJI, KANHAIYA SINGH

body1955
Judgment Banerji, J. 1. This is an application under Article 227 of the Constitution of India, praying to quash the order of conviction passed against the two petitioners under sec. 294, Indian Penal Code, by the Gram Panchayat Court of Naudiha. 2. A few facts in this connection need be stated. The complainant, Indradeo Singh, alleged that there was domestic dispute between him and the two petitioners, and on the 3rd of July, 1954, he was threatened that his land in front of his house would be ploughed up and the ingress and egress to and from the house would be blocked by a thorn hedge. On the 5th July, 1954, according to the complainant, this threat was carried out by the two petitioners who demolished the complainants ridge and amalgamated his land with theirs. The complainant then approached the Sarpanch of the Naudiha Gram Panchayat, and on the 6th of July, 1954, some Panches and other members including the Gram Sewak came to the disputed land, carefully measured the same with reference to a map, fixed the boundary of the complainants field and started demarcating it by planting some pegs. The petitioners, however, uprooted the pegs and threw them away. Efforts were made to have the matter compromised according to the provisions of sec. 58 of the Bihar Panchayat Raj Act, but the same proved to be abortive. Witnesses on both sides were then examined by the Panchayat Court and it was held that the petitioners were guilty under sec. 294, Indian Penal Code. The relevant portion of the finding may be stated here as follows : "As such, I and Tulsi Tewari, the Panch off the complainant, are of opinion that because of the uprooting of the khuta, demolition of the ridge (ari) and amalgamation of the complainants land with own land, and blocking the egress of the complainant by raising a thorn hedge the accused are guilty and we sentence accused No. 1, Ramdut Sinha to pay a fine of Rs. 35/- and accused no. 2, Ramraj Sinha to pay a fine of Rs. 45/- under sec. 294, I. P. C." 3. 35/- and accused no. 2, Ramraj Sinha to pay a fine of Rs. 45/- under sec. 294, I. P. C." 3. it may be noticed from the above finding that the Panchayat Court did not specifically hold as to who was in actual physical possession of the disputed land, and for several acts, each of which might have constituted a different offence, convicted the petitioners under a section which has absolutely nothing to do with the facts alleged by the prosecution. Sec.294, Indian Penal Code, relates to obscene acts and songs and is in the following words : "294. Whoever, to the annoyance of others, (a) does any obscene act in any public place, or (b) sings, recites or utters any obscene songs, ballad or words, in or near any public place shall be punished with imprisonment of either description for a term which may extend to three months or with fine, or with both". The land opposite to the house of the complainant, which is said to have been ploughed up by the petitioners, is not a public place, and it is not pretended if it was ever so treated. It was also not the prosecution case that the petitioners, in order to annoy the complainant, did any obscene act or sung or recited any obscene songs or uttered any obscene words in connection with the alleged trespass and mischief. They might have given vent to their displeasure in some violent or obscene language, as is usual with such villagers, when some Panches went to the spot and started demarcating the respective lands, but the petitioners were never asked to face a charge for using intentionally any insulting language giving provocation which was likely to cause a breach of the peace. Had that been so, it could have been argued that the Panchayat Court, not being very familiar with the Indian Penal Code, wrongly applied Sec.294 in place of Sec. 504, Indian Penal Code. It was never the prosecution case that the petitioners did anything which might have brought them within the mischief of Sec.294, Indian Penal Code. Again, if the Panchayat Court thought that the petitioners committed mischief by destroying or removing any land-mark fixed by the authority of the Panches, that offence, being under Sec. 434, Indian Penal Code, could not be tried by that Court. 4. Again, if the Panchayat Court thought that the petitioners committed mischief by destroying or removing any land-mark fixed by the authority of the Panches, that offence, being under Sec. 434, Indian Penal Code, could not be tried by that Court. 4. The position, therefore, is that a totally wrong section of the Indian Penal Code has been applied and the petitioners have been convicted of an offence which, admittedly, they did not commit and which they were never asked to meet at the trial. Accordingly, the order of conviction and sentence passed by the Panchayat Court of Naudiha becomes vulnerable and liable to be quashed. 5. It has been argued on behalf of the opposite party that this petition under Article 227 of the Constitution of India is not maintainable as the petitioners did not take recourse to have the order set aside by an appeal to the Full Bench of the Gram Cutchery under Sec. 67 of the Bihar Panchayat Raj Act. It appears that the petitioners, instead of appearing, which they should have done, before the Full Bench of the Gram Katchery, moved the Sub-divisional Officer in revision and after the same was rejected, came up to this Court with a prayer to quash their conviction and sentence. The question naturally arises if the application under this Article can be entertained at all when the petitioners deliberately refrained from exercising their right of appeal which they had under the Act. In the case of Sri Lal V/s. W.C. Irving AIR 1951 Cal 506 (A), their Lordships refused to apply Article 227 of the Constitution in a case where the order dismissing the execution was not set aside by way of an appeal and yet the decree holder had prayed for certain reliefs, which were turned down, after the dismissal of the execution petition. It was observed that the order dismissing the execution case could be set aside by way of an appeal and, no such appeal having been filed, the order became final, for which reason the interlocutory orders passed after the final order dismissing the execution petition could not be agitated. Their main grounds for refusing to apply Article 227 were that no question of jurisdiction was involved and no gross injustice caused to the party which called for an exercise of the power of superintendence of the High Court under Article 227. Their main grounds for refusing to apply Article 227 were that no question of jurisdiction was involved and no gross injustice caused to the party which called for an exercise of the power of superintendence of the High Court under Article 227. In another case, Premwati V/s. Sm. Satyawati Jain AIR 1953 All 55 (B) relief under Article 227 was refused as the petitioner had failed to move under Order 21, Rule 90, Civil Procedure Code, to obtain a redress for the injury alleged to have been caused. In the case before us, the petitioners could, under Sec. 67 of the Bihar Panchayat Raj Act, appeal from their conviction to the Full Bench of the Gram Katchery who had jurisdiction to reverse the order passed. The petitioners could also move the Subdivisional Officer under Section 73 of the same Act for cancellation of any order passed by the Bench. Instead of preferring an appeal under Sec. 67, they moved the Subdivisional Officer, but their application was rejected. 6. It has been held in the case of Bimala Prasad Roy V/s. State of West Bengal 55 Cal WN 87: (AIR 1951 Cal 258) (C) that Article 227 of the Constitution gives the High Court a right in appropriate cases to interfere judicially with orders of Courts and Tribunals made amenable to its jurisdiction by that Article. There is no doubt that the powers of superintendence given to the High Courts under Article 227 of the Constitution are to an appreciable extent on this matter similar to the powers given to the High Court by the Government of India Act, 1915, and the High Court, therefore, exercising its powers under Article 227, can give relief to a person, in suitable cases, although the party concerned might not have availed of a remedy open to him. There is nothing in the Article restricting the powers of the High Court in interfering in appropriate cases. It must be understood, however, that in such cases, where a party has not chosen a particular process by which he could have obtained his remedy, the High Court should be extremely reluctant to interfere. This power should be exercised in exceptional cases only. It must be understood, however, that in such cases, where a party has not chosen a particular process by which he could have obtained his remedy, the High Court should be extremely reluctant to interfere. This power should be exercised in exceptional cases only. It is difficult to lay down the nature of cases where the High Court would feel inclined to interfere, and it will depend upon the facts of each case where the High Court would consider it necessary to grant a relief to a party even when all the remedies available to him have not been exhausted. In this particular case it appears from the facts mentioned in the judgment of the Bench of the Gram Katchery that by uprooting the pegs and by throwing away the stone demarcating the boundary line, the petitioners committed an offence under Sec. 434, Indian Penal Code. It is evident that Sec. 62 of the Bihar Panchayat Raj Act did not confer any jurisdiction on a Bench of the Gram Katchery to try a case under Sec. 434, Indian Penal Code. It follows, therefore, that the Bench of the Naudiha Gram Katchery had no jurisdiction to try the petitioners if they thought that they (the petitioners) had committed an offence under Sec. 434, Indian Penal Code, by destroying or moving any land-mark. If the Bench were of the opinion that the petitioners had criminally trespassed on the land of the complainant, there should have been a finding that the land encroched upon was in possession of the complainant and not that of the petitioners. From, the findings of the Bench it does not appear that they took into consideration any alleged utterance of insulting words giving provocation to any person which might cause him to break the public peace. As already pointed out, it was never the prosecution case that the petitioners did no obscene act or sung, recited or uttered any obsecene songs, ballad or words. The complainant could not, possibly, allege that the land in front of the complainants house was a public place. It is, therefore, a matter of extreme surprise to find a conviction under Sec.294, Indian Penal Code. The complainant could not, possibly, allege that the land in front of the complainants house was a public place. It is, therefore, a matter of extreme surprise to find a conviction under Sec.294, Indian Penal Code. Accordingly, when the Bench of the Gram Katchery had no jurisdiction to try persons for an offence constituted by acts done by them, and when the conviction is for an offence which never was the prosecution case, the High Court in those circumstances may interfere, especially when the petitioners had, indeed, moved the Subdivisional Officer who as well as the Full Bench of the Gram Katchery had jurisdiction to set aside the conviction and sentence. 7. In the result, therefore, the application, succeeds and the order of the Bench of the Gram Katchery is herewith set aside. The fines, if paid, should be refunded. Kanhaiya Singh, J. 8 I agree.