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1969 DIGILAW 117 (PAT)

Motilal Yadav v. Rambilas Yadav

1969-08-05

KANHAIYAJI

body1969
Judgment Kanhaiyaji, J. 1. The petitioners along with one other person, were charged under Section 379 of the Indian Penal Code for committing theft of bundles of Matar and Massor from the field of informant Rambilas Yadav. The occurence is alleged to have taken place on 6-2-1967. When the trial concluded a petition was filed on behalf of the informant that the case was exclusively triable by a Bench of the Gram Cutcherry. The order sheet of the case showed that the learned Subdivisional Magistrate had taken cognizance in the case without cancelling the jurisdiction of the Gram Cutcherry. Therefore, the learned Munsif Magistrate held that the court had no jurisdiction to proceed with the trial and in absence of a proper trial the petitioners were acquitted of the charges levelled against them. However, the learned Munsif Magistrate observed that the acquittal of the accused persons was not on merit and, therefore, it would not be a bar in initiation of a proceeding by the first informant if he so desires. The opposite party on 17-2-69 filed a complaint on the same set of facts under Section 379 of the Indian Penal Code before the Subdivisional Magistrate who examined him on solemn affirmation and passed the impugned order on 18-2-69 which reads as follows : Perused the complaint petition and the judgment dated 25-1-69 of the learned Munsif Magistrate. Cognizance taken. Summon the accused Under Section 379, I.P.C. The complainant has seated on S.A. that the G. P. of the area is in the Meli of the accused. So the jurisdiction of G. P. is cancelled, Case is transferred to the Court of Shri R. Singh, Ajunsif-Magistrate, 2nd class, for favour of disposal. The complainant stated material facts in the complaint petition filed before the Subdivisional Magistrate. He also stated that the complainant had enmity with the Mukhia and the Sarpanch of the Gram Panchayat and they were in collusion with the accused. On solemn affirmation the complainant has stated "the G. P. is in league with the accused. 2. It is not disputed that the loss suffered by the complainant was of Rs. 70/- and, therefore, the offence was triable by a Gram Cutcherry. It is also not disputed that there was a Gram Cutcherry functioning at the relevant time when the complaint had been filed in the court of the Subdivisional Magistrate. 2. It is not disputed that the loss suffered by the complainant was of Rs. 70/- and, therefore, the offence was triable by a Gram Cutcherry. It is also not disputed that there was a Gram Cutcherry functioning at the relevant time when the complaint had been filed in the court of the Subdivisional Magistrate. The learned Magistrate has observed that the complainant stated on solemn affirmation that the Gram Panchayat of the area was in the Meli of the accused and, therefore, he cancelled the jurisdiction of the Gram Panchayat. 3. It is no doubt that Section 68 of the Bihar Panchayat Raj Act (hereinafter referred to as the Act) empowers the Magistrate to take cognizance of a case triable by a Gram Cutcherry, provided there is an order by the Magistrate to the effect that the case shall not be tried by the Gram Cutcherry. Before taking cognizance the Magistrate has to pass a contrary order that the case shall not be tried by the Gram Cutcherry. Before taking cognizance the Magistrate has to pass a contrary order that the case shall not be tried by a Bench of the Gram Cutcherry. Section 68(1) of the Act states that no court shall take cognizance of any case or suit which is cognizable under the Act by a Bench of the Gram Cutcherry, unless an order to the contrary has been passed by the Subdivisional Magistrate or the Munsif concerned under the previsions of the Act or any other law for the time being in force. The Magistrate has to apply his judicial discretion and it will not be a mere executive order. In the case of Balden Singh and Ors. v. The State of Bihar and Ors. , S.K. Das, J. while dealing with the question regarding Constitutional validity of Section 62 of the Act has observed as follows: ... This argument as to discrimination fails to take note of the other provisions of the Act which we have set out above. In the case of Balden Singh and Ors. v. The State of Bihar and Ors. , S.K. Das, J. while dealing with the question regarding Constitutional validity of Section 62 of the Act has observed as follows: ... This argument as to discrimination fails to take note of the other provisions of the Act which we have set out above. Section 62 is, in express terms, subject to other provisions of the Act, therefore, it is subject to Section 68 which states that no Court shall take cognizance of any case or suit which is cognizable under the Act by a bench of the Gram Cutcherry, unless an order, to the contrary has been passed by the Sub Divisional Magistrate of the Munsif concerned under the provisions of the Act or any other law for the time being in force. On a proper construction of Sections 62 and 68, it is clear that there is really no discrimination and a case cognizable by a bench of the Gram Cutcherry must be tried there, unless there has been an order to the contrary in the exercise of his judicial discretion by the Sub Divisional Magistrate or the Munsif concerned as contemplated by the latter part of Section 68. The provisions of the Act under which such an order can be passed are contained in the succeeding sections already refered to by us. The whole scheme of ch. VII of the Act is that a case or suit cognizable under the Act by a Gram Cutcherry should be tried by a bench of the Gram Cutcherry save in those exceptional cases which are provided for in Sections 70 and 73. The reference to concurrent jurisdiction in Section 62 is explainable by reason of the provisions in Sections 69, 7.0 and 73, so that on the transfer or withdrawal of a case from the Gram Cutcherry or the cancellation of the jurisdiction of the bench, it may not be said that the ordinary criminal courts also have no jurisdiction to try it. 4. The reasons given by the learned Magistrate in the present case for cancelling the jurisdiction of the Gram Cutcherry are utterly inadequate and against the law. Section 5 of the Act has provided that no Sarpanch or Up- Sarpanch or Panch shall take part in any proceedings in which he is personally interested. 4. The reasons given by the learned Magistrate in the present case for cancelling the jurisdiction of the Gram Cutcherry are utterly inadequate and against the law. Section 5 of the Act has provided that no Sarpanch or Up- Sarpanch or Panch shall take part in any proceedings in which he is personally interested. It has been further provided in Section 57(1) of the Act that every suit or case instituted under this Act shall be instituted before the Sarpanch or where the services of the Sarpanch are not available before the Up-Sarpanch and 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. Proviso (ii) of the section is important to be noted which runs as follows : (ii) if in any suit or case, the Sarpanch is precluded from taking part in the proceeding, the Up-Sarpanch or, if he is also so disqualified in the opinion of the Sarpanch, another of the Panch shall be elected by the panel of Panches from its own number and the Up-Sarpanch or, as the case may be, the Panch so elected shall discharge all the functions of the Sarpanch for the purposes of the said suit or case; In this case we are not concerned with the Up-Sarpanch as there is no allegation against him. Since the allegation was that the Sarpanch was interested, the learned Magistrate should not have cancelled the jurisdiction of the Gram Cutcherry, but should have sent this case to the Gram Cutcherry with the direction that either the Up-Sarpanch or the panel of the Panches should elect its Panch from its own number and the Up-Sarpanch or the Panch so elected may discharge all the functions of the Sarpanch for the purposes of the case. For the reasons stated above, it was not competent for the learned Magistrate to pass an order on this ground that the Gram Cutcherry should not take cognizance of the case. 5. For the reasons stated above, it was not competent for the learned Magistrate to pass an order on this ground that the Gram Cutcherry should not take cognizance of the case. 5. It is needless to point out that the Act has provided ample safeguards for proper trial by the Gram Cutcherry, In case the Subdivisional Magistrate finds, for reasons to be recorded by him in writing, that the case ought not to be tried or heard by a Bench of the Gram Cutcherry, he may withdraw the case and transfer it to a competent Magistrate or any other Bench of the Gram Cutcherry within the local limits of the jurisdiction of the Regional Gram Panchayat Advisory . Committee of the area, for disposal. Similarly Section 73 of the Act contains provisions for cancelling the jurisdiction of the Bench or quashing proceedings of the Bench in appropriate cases. 6. In my opinion, therefore, the order of the learned Magistrate dated 18-2-69 cancelling the jurisdiction of the Gram Cutcherry was illegal and must be set aside. The case must go back to the learned Magistrate who would send the case to the Gram Cutcherry with a direction to proceed according to law. The application is allowed and the rule made absolute.