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1968 DIGILAW 54 (PAT)

CHHATAR YADAV v. DEGAN MAHTON

1968-03-21

SHAMBHU PRASAD SINGH

body1968
JUDGMENT Shambhu Prasad Singh, J. This is an application under Article 227 of the Constitution of India for quashing the Judgment and order dated the 23/28th of January, 1967, of the Gram Cutcherry of Pratappur, within the sub-division of Jamui, in the district of Monghyr, convicting the petitioners under various sections of the Indian Penal Code and Section 24 of the Cattle Trespass Act, and sentencing petitioners Chhatar Yadav, Botal Yadav and Doman Yadav to pay a fine of Rs. 25/-each, in default, to undergo simple imprisonment for ten days each, and the remaining two petitioners, Sahdeo Yadav and Balchand Yadav, to pay a fine of Rs. 15/- in default, to undergo simple imprisonment for seven days each. 2. The points raised by learned counsel for the petitioners relate to the question of jurisdiction of the bench of the Gram Cutcherry and, therefore, it is not necessary to state the allegations made by the prosecution and the defence of the petitioners. 3. Opposite party Degan Mahto filed a petition of complaint before the Gram Cutcherry on the 10th of December, 1966, and on the same day he nominated one Rambalak Singh as a Panch on his behalf. After the petitioners appeared before the Gram Cutcherry on the 14th December, 1966, they nominated one Baiju Sao as a Panch on their behalf. On the 24th of December, 1966, Sarpanch Jago Mistry nominated Brihaspat Manjhi and Sewak Mahto as the other two Panches who would hear the case. On the 28th of December, 1966, only Sarpanch Jago Mistry and the other two Panches nominated by him, namely, Brihaspat Manjhi and Sewak Mahto were present. Rambalak Singh, the Panch nominated by the complainant opposite party, and Baiju Sao, the Panch nominated by the accused-petitioners, were not present. One Mahadeo Mahto was nominated in place of Rambalak Singh. It is not clear from the order-sheet of that date whether the nomination of Mahadeo Mahto was by the complainant-opposite party or by the Sarpanch. No one was nominated in place of Baiju Sao, and the bench of the Gram Cutcherry constituted of Sarpanch Jago Mistry, Brihaspat Manjhi, Sewak Mahto and Mahadeo Mahto took up the case and recorded evidence which was produced on behalf of the complainant-opposite party. No one was nominated in place of Baiju Sao, and the bench of the Gram Cutcherry constituted of Sarpanch Jago Mistry, Brihaspat Manjhi, Sewak Mahto and Mahadeo Mahto took up the case and recorded evidence which was produced on behalf of the complainant-opposite party. On the 23rd of January 1967, Mahadeo Mahto was not present, but the Sarpanch, the two Panches nominated by him, and Rambalak Singh and Baiju Sao; the two Panches nominated by the complainant-opposite party and the accused-petitioners respectively were present. They recorded the judgment on that date, but as the accused were absent, it could not be delivered. The accused petitioners appeared before the Gram Cutcherry on the 28th of January, 1967, and the judgment was delivered in their presence. On that date, the Sarpanch, the two Panches nominated by him, namely, Brihaspat Manjhi and Sewak Mahto, and Rambalak Singh, the Panch nominated by the complainant-opposite party, were present, but Baiju Sao wat not present. Thereafter, it appears that the petitioners moved the Sub-divisional Magistrate, Jamui, under Section 73 of the Bihar Panchayat Raj Act, 1947, raising a number of points before him. By his order dated the 18th of October, 1967, the learned Sub-divisional Magistrate has found merit in none of the points raised by the petitioners and rejected the application of the petitioners under Section 73 of the Act. At one place the learned Sub-divisional Magistrate has observed that the judgment bears the signatures of only four of the Panches. He does not appear to be quite accurate, inasmuch as the judgment at the foot of it has been signed only by the Sarpanch. But in the margin of the order-Sheet, the Sarpanch and three of the Panches have put in their signatures and Brihaspat Manjhi has appended his thumb impression. Therefore the judgment can be said either to have been signed by the Sarpanch alone or by all the five Panches. 4. Mr. Jagat Narain Prasad Sinha appearing for the petitioners has raised only the following two points for consideration of this Court: (i) When the case was heard on the 28th of December, 1967, only four Panches were present, and as such the quorum was not complete, that has vitiated the proceeding. 4. Mr. Jagat Narain Prasad Sinha appearing for the petitioners has raised only the following two points for consideration of this Court: (i) When the case was heard on the 28th of December, 1967, only four Panches were present, and as such the quorum was not complete, that has vitiated the proceeding. (ii) Two of the Panches Rambalak Singh and Baiju Sao, who were present on the 23rd of January, 1967, when the judgment was recorded by the bench of the Gram Cutcherry, were not present when the evidence was recorded on the 28th of December, 1966, and Mahadeo Mahto, who was present and took part in the proceeding on the 28th of December, 1966, was absent on the 23rd of January, 1967, and this also has vitiated the proceeding, inasmuch as the judgment has not been delivered and recorded by the bench of the Gram Cutcherry which heard the case. The learned Sub-divisional Magistrate in his order dated the 18th of October, 1967, has also observed that it was not necessary that the Panch nominated by the accused must have necessarily participated in the proceeding, and that under the law, only three Panches were sufficient to constitute a valid bench. He does not appear to be correct in his observation that only three Panches would constitute a valid bench. Sub-section (1) of Section 52 of the Bihar Panchayat Raj Act, 1947 lays down that every suit or case instituted under the Act shall be heard and determined by a bench of the Gram Cutcherry consisting of the Sarpanch and two Panches from the panel to be named by the respective parties to the suit or case and two other Panches selected by the Sarpanch in such manner as may be prescribed. Sub-section (2) of Section 57 provides that not less than three Panches including the Sarpanch and the two Panches named by the respective parties shall form a quorum for the purpose of hearing and determining a suit or case under Sub-section (1). Thus according to Section 57, the bench of the Gram Cutcherry hearing a suit or a case must be constituted of five Panches. Thus according to Section 57, the bench of the Gram Cutcherry hearing a suit or a case must be constituted of five Panches. The proviso to Sub-section (1) lays down the procedure how the required number of Panches would be selected in case a party does not nominate a Panch, and if the services of the Sarpanch or a Panch cease to be available at any time after the institution but before the determination of the suit or case. According to proviso (1), if a party does not nominate a Panch within such time as may be prescribed, the Sarpanch, or in the case of non-availability of the service of the Sarpanch for such period as may be prescribed, the Up-Sarpanch shall nominate a Panch from the panel. According to proviso (iv), if the services of a Panch cease to be available at any time after the institution but before the determination of the suit or case, or he is precluded under Section 56 from taking part in the proceeding, another Panch from the panel shall be nominated by the party concerned or selected by the Sarpanch, as the case may be, within the prescribed time. These two proviso also make it manifest that the number of the Panches including the Sarpanch constituting the bench of the Gram Cutcherry for hearing a suit or case must not be less than five, and the vacancy, if any, must be filled in. Rule 25 of the Bihar Gram Cutcherry Rules, 1962, lays down that a complainant in a case shall nominate a Panch on his behalf on the day he institutes the case, and an accused person in a case shall nominate a Panch on his behalf on the day following the day on which he appears or is brought before the Sarpanch, failing which the Sarpanch shall nominate a Panch on behalf of the accused as soon as may be possible. It further provides that if at any time during the pendency of a suit or case, the services of a Panch cease to be available for a period of seven days or if any Panch is precluded under Section 56 from taking part in the proceedings, another Panch from the panel of Panches shall be nominated by the party concerned or selected by the Sarpanch, as the case may be, on the following day. But if the party fails to nominate a Panch within the time allowed by this rule, the Sarpanch shall nominate a Panch on behalf of the party from the panel of Panches in accordance with the procedure laid down in Rule 24. From the language of this rule, it is abundantly clear that the Sarpanch can nominate a Panch on behalf of a party only if the party fails to nominate one, and for that purpose he must get one day's time. 5. In the instant case, on the 28th of December, 1966, the Sarpanch did not allow one day's time to the petitioners to nominate a Panch in place of Baiju Sao and proceeded with the hearing of the case even without himself nominating a Panch in his place. This was certainly in violation of Section 57 of the Act and Rule 25 of the Bihar Gram Cutcherry Rules. It can be contended, however, that in view of the fact that the petitioners submitted to the jurisdiction of the Gram Cutcherry as constituted on the 28th of December, 1966, and allowed the case to proceed without raising any objection, they should not be allowed to raise this point at this stage. As. however, this application must succeed on the second point raised by learned counsel for the petitioners, I do not consider it necessary to examine this question regarding sub-mission to the jurisdiction of the Gram Cutcherry. 6. Rambalak Singh and Baiju Sao, two of the Panches, who were party to the recording of the judgment, being not present when the case was heard, and Mahadeo Mahto, who was present at the time of the hearing of the case, being 'absent at the time of the recording of the judgment, it is manifest that the judgment was not delivered by the same bench of the Gram Cutcherry which heard the case, and in that view of the matter, the judgment and order of the Gram Cutcherry convicting and sentencing the petitioners must be set aside. 7. In the result, the application is allowed, the judgment and order of the Gram Cutcherry dated the 23/28th of January, 1967, is set aside and the case is sent back to the Gram Cutcherry for re-hearing in accordance with law. The Gram Cutcherry should now ignore the proceedings of the case which took place on or after the 28th of December, 1966.