JUDGMENT : Damodar Prasad Singh, petitioner lodged a first information report before the Office-in-charge of Begusarai Police Station on the 7th October, 1965, at 2 P.M., making allegations against the opposite party which constituted offences under Sections 147 and 323, Indian Penal Code. Investigation proceeded. During the course of investigation, a protest petition was filed. Subsequently on completion of the investigation, police submitted a report that the case was false. The informant was examined on solemn affirmation on the basis of the protest petition already filed by him. After hearing both the parties, the learned Subdivisional Magistrate passed a long ORDER :holding that there were sufficient materials on the record to support the prosecution case and to proceed with the matter. Accordingly, he took cognizance of offences under Sections 147 and 323, Indian Penal Code. He transferred the case to the court of Mr. J. Nath, Munsif Magistrate, First Class, Begusarai for favour of disposal. This ORDER :was passed on 21.7.1966. After the aforesaid ORDER :taking cognizance was passed, the complainant filed a petition that though the case was triable by Gram Panchayat, for the ends of justice the case should be tried by a regular criminal court at Begusarai. He, therefore, prayed that the jurisdiction of the Gram Panchayat may be cancelled. On this the learned Magistrate passed the following ORDER : – “...... Heard the learned lawyer on behalf of the petitioner. In the interest of justice, the jurisdiction of the Gram Pancheyat is cancelled. Send the record to the trial court as ORDER :ed above.” In the trial court examination of the witnesses started in the year 1966. After a protracted trial, arguments were heard on the 2nd and 3rd December, 1968. On the 3rdof December, 1968 the defence lawyer raised a point that the trial was without jurisdiction, as the learned Subdivisional Magistrate had cancelled the jurisdiction of the Gram Panchayat only after taking cognizance of the present case. After a protracted trial, arguments were heard on the 2nd and 3rd December, 1968. On the 3rdof December, 1968 the defence lawyer raised a point that the trial was without jurisdiction, as the learned Subdivisional Magistrate had cancelled the jurisdiction of the Gram Panchayat only after taking cognizance of the present case. The learned trying Magistrate in a long ORDER :after reviewing the provisions of law observed that a case triable by Gram Cutchery has initially to be instituted in the Gram Cutchery and if the Subdivisional Magistrate is satisfied on some ground or the other that a case should not be tried there, he may withdraw that case under the provision of Sections 70 or 73 of @@@@@@@@@@@@@@@@@@ the Bihar Panchyat Raj Act (hereinafter to be called the ‘Act’), but in this case the Subdivisonal Magistrate has not taken cognizance of the case under Section 70 or 73 of the Act, and passed the following ORDER : – “...... I am of opinion that the Subdivisional Officer was not legally competent according to the provisions of the slid Act to cancel the jurisdiction of the Gram Panchayat Cutcherry in the facts and circumstances of the case.... I send back the case record to Subdivisional Officer, Begusarai for passing ORDER :s in accordance with law.” It is against this ORDER :that this revision application has been filed by the complainant. 2. It is not disputed that the allegations constituted offences which were triable by Gram Cutcherry. It is also not disputed that a Gram Cutcherry having jurisdiction over the area was functioning at the relevant time. The learned counsel for the petitioner has, however, submitted that the impugned ORDER :of the court below is bad, in asmuch as, for passing an ORDER :cancelling the jurisdiction of the Gram Cutcherry it was not necessary to file the complaint initially before Gram Cutcherry as has been observed by the learned Magistrate in this case. It has further been contended that there was no irregularity in taking cognizance in view of the latter ORDER :passed the same day. 3. It has further been contended that there was no irregularity in taking cognizance in view of the latter ORDER :passed the same day. 3. Section 68 of the Bihar Panchayat Raj Act reads as follows : “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 provisions of the Act or any other law for the time being in force.” It shows that the jurisdiction of the regular criminal court in respect of taking cognizance of offences which are triable by a bench of the Gram Cutcherry as provided under Section 62 of the Act is ousted unless a contrary ORDER :is passed under the provisions of the Act or any other law. In absence of such ORDER :, a criminal court has no jurisdiction to take cognizance of the case. The expression “Jurisdiction concurrent with that of the criminal court”. used in Section 62 of the Act though not happily worded has been interpreted in several decisions in the way that the jurisdiction of the criminal court is latent and becomes patent only when the bar is removed by an ORDER :as contemplated by Section 68 (1) of the Act. The ORDER :contemplated by Section 68 (1) of the Act can be passed under Sections 69, 70, and 73 of the Act. Section 70 provides for withdrawal of cases pending before the Gram Cutcherry. Similarly Section 73 which relates to cancellation of the jurisdiction of the Gram Cutcherry or quashing of the proceeding before the bench of the Gram Cutcherry also contemplates pendency of the case before a Gram Cutcherry. Section 70 provides for withdrawal of cases pending before the Gram Cutcherry. Similarly Section 73 which relates to cancellation of the jurisdiction of the Gram Cutcherry or quashing of the proceeding before the bench of the Gram Cutcherry also contemplates pendency of the case before a Gram Cutcherry. At the time of taking cognizance the ORDER :contemplated in the latter part of Section 68 (1) can be passed under Section 69 of the Act; which reads as follows : “If at any stage of proceedings in a case or suit pending before a Magistrate or Munsif it appears that the case or suit is one triable by a bench of the ‘Gram Cutcherry’ the Sub• divisional Magistrate or the Munsif, as the case may be, shall, if he is satisfied that the case or suit is not of such nature or of such difficulty that it ought to be tried by a regular court, at once transfer the case or suit to the bench having jurisdiction." When a complaint is filed before the Sub divisional Magistrate he has to apply his mind to the allegations mentioned in the complaint petition and if he finds that though the allegations make out offences triable by Gram Cutcherry, the case is of such a nature or difficulty that it ought to be tried by El regular court, he will make an ORDER :accordingly and then take cognizance and transfer the case to a regular criminal court for disposal. Unless such an ORDER :is recorded he has to transfer the case at once to a bench of Gram Cutcherry having jurisdiction in the matter. Recording of such an ORDER :is condition precedent to 'taking cognizance in the case. Such ORDER :must be expressed. It cannot be taken as implied in the ORDER :taking cognizance. Without such ORDER :the cognizance taken will be without jurisdiction. The jurisdiction of a Gram Cutcherry is cancelled under Section 73 of the Act only when the case is pending there. The learned counsel has argued that the latter ORDER :should be read as a part of the original ORDER :taking cognizance and therefore, he has submitted that requirement of Section 68(1) is complied with and no irregularity has been committed in taking cognizance in the matter. The learned counsel has argued that the latter ORDER :should be read as a part of the original ORDER :taking cognizance and therefore, he has submitted that requirement of Section 68(1) is complied with and no irregularity has been committed in taking cognizance in the matter. But after the Subdivisional Magistrate took cognizance and passed an ORDER :transferring the case to another Magistrate for disposal, he ceased to have seisin of the matter though the record of the case was not physically moved to the transferee court and he could not have passed any ORDER :under Section 69 of the Act ousting the jurisdiction of the Gram Cutcherry. He could pass such ORDER :only under Section 73 of the Act, but that is not the case here. As has noted above, ORDER :under Section 73 can be made where a case is pending before a Gram Cutcherry. 4. In support of the above view, a reference can be made to a decision of the Supreme Court in (1) Baldeo Singh and others V. State of Bihar and others (A.I.R. 1957 S.C. 612). In that case while dealing with the question regarding constitutional validity of Section 62 of the Act, S.K. Das, J. observed thus – “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 (meaning Sections 69, 70 and 73) referred 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 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, 70 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.” A point as to whether passing of the ORDER :as contemplated under Section 68(1) of the Act is a condition precedent for taking cognizance arose for consideration in the case (2) Bimal Singh and others V. State of Bihar (1965 B.L.J.R. 661). In that connection, it has been observed as follows : “On a careful examination of the provision of law contained in Section 69, however, it would be noticed that this is the section which, in my opinion, embraces within its ambit an ORDER :envisaged to be passed under the latter part of Sub-sec. (1) of Sec. 68 at the time of taking cognizance of a case by the Sub-divisional Magistrate. If at that time, either upon a complaint or upon a police report the Subdivisional Magistrate finds that the case is one which is triable by a bench of the Gram Cutcherry under Sec. 62 of the Act but yet is of such nature or of such difficulty that it ought to be tried by a regular court he has not to make an ORDER :to this effect and then take cognizance of the case. Unless he did so, he violates the prohibitory command of the Legislature contained in the first part of Sub-sec. (1) of Sec. 68 and does an act which he has no jurisdiction to do in absence of such an ORDER :....... Unless he did so, he violates the prohibitory command of the Legislature contained in the first part of Sub-sec. (1) of Sec. 68 and does an act which he has no jurisdiction to do in absence of such an ORDER :....... At the time the complaint is filed before, or the police report is submitted to, the Subdivisional Magistrate, he has got to apply his mind before taking cognizance @@@@@@@@@@@@@ as to whether the case is triable by a bench of the Gram Cutcherry if sc, whether it is of such a nature or of such difficulty that it ought to be tried by a regular court, if not, to send the complaint or the police report for being instituted and filed before a bench of the Gram Cutcherry. The ORDER :to the contrary cannot be made under Sub-sec. (1) of Sec. 68 itself......” In that case Untwalia, J. with whom Anant Singh, J. agreed quoted with approval the following observation made in another bench decision of this Court in (3) Ramlakhan Singh V. Thakur Mahton (1954 B.L.J.R., 588) in support of his view – “The ‘provisions’ of Section 68 just quoted above, in my opinion, indicate that the jurisdiction to take cognizance by the Subdivsional Magistrate is taken away unless he had passed a contrary ORDER :under the provisions of this Act or any other law. This was a matter affecting the jurisdiction of the learned Subdivisional Magistrate, and, if he intended to pass a contrary ORDER :, he should have done so in express terms and mentioned whether the contrary ORDER :was passed under this Act or under any other law. In my opinion, the ORDER :taking cognizance cannot be impliedly read as including an ORDER :also to the contrary under Act or under some other law within the meaning of Section 68 of the Act.” Ramlakhan Singh’s case is an authority for the proposition that the ORDER :taking cognizance cannot be impliedly read as including an ORDER :to the contrary as contemplated under Section 68 of the Act. It is needless to refer to other decisions on the paint. 5. It is needless to refer to other decisions on the paint. 5. The learned counsel for the petitioner has referred to decisions in the case of (4) Jagdish Yadav and others V. The State of Bihar (1960 B.L.J.R. 200) and in (5) Kisto MandaI V. State of Bihar (1960 B.L.J.R. 412) in which trial by a regular criminal court was held to be valid even though the offences were triable by a bench of Gram Cutcherry. But those were the cases in which the complaints disclosed offences of which cognizance could be taken by a regular criminal court. Therefore, the cognizance was rightly taken in these cases. It was at the trial stage that it was found that the offences made out were triable by Gram Cutcherry and even then the trying Magistrate did not send back the record to the Subdivisional Magistrate for taking necessary step in the matter and himself proceeded to dispose of the case. It was under such circumstances that it was held that the trying Magistrate was not bound by any law to return the file to the Subdivisional Magistrate and if he concluded the trial, it was not vitiated, inasmuch as, there was no prejudice to the accused. In the instant case, the cognizance itself was without jurisdiction, in asmuch as, the allegations made out offences which were exclusively triable by the Gam Cutcherry and there was no ORDER :to the contrary as contemplated in Section 68 (1) of the Act. The learned counsel for the petitioner argued that in the instant case, the trial came to an end so much so that arguments were heard and, therefore, at this late stage the learned Magistrate should not have sent back the record to the Subdivisional Magistrate and in this connection, he has referred to an observation made in the aforesaid decision in (5) Kisto Mandals case (1960 B.L.J.R. 412). It was observed therein that the expression “at any stage” in Section 69 must not be deemed to include even the stage of conclusion of a trial, otherwise, it would lead to a very anomalous position if the jurisdiction of the Magistrate is to be revoked at the end of the trial. Question of stage is of no importance where the cognizance itself was without jurisdiction. Question of stage is of no importance where the cognizance itself was without jurisdiction. The above observation was made in the case where the cognizance was taken all right, but subsequently it was found that the offences made out were triable by a Gram Cutcherry. So if there was want of jurisdiction to take cognizance, the whole proceeding is vitiated and it is immaterial as to whether such an objection was taken at the early or late stage of the proceeding. Therefore, there is no substance in this submission of the learned counsel. 6. Lastly, it has been contended that the defect is curable under Section 529 (e) of the Code of Criminal Procedure. That Section reads as follows : – “If any Magistrate not empowered by law to do any of the following things, namely : – (e) to take cognizance of an offence under Section 190, Sub-section (1), Clause (a) or Clause (b) erroneously in good faith does that thing, his proceedings shall not be set aside merely on the ground of his not being so empowered”. This section cures the irregularity where a Magistrate though not empowered by law to do certain things does the same in good faith. Here the Subdivisional Magistrate had power to take cognizance of an offence under Section 190, Sub-section (1), Clause (a) or (b). Question of power does not arise in the instant case. What is forbidden is taking of cognizance of certain offences which are triable by Gram Cutcherry. This involves question of jurisdiction. There was want of jurisdiction itself. Therefore Section 529 Cr. P.C. has no application at all. It cannot cure the ORDER :passed by a Magistrate where there was inherent want of jurisdiction to do so. In support of his contention the learned counsel has referred to a decision in (6) Purshottam Jethanand V. The State of Kutch (A.I.R. 1954 S.C. 700) and also another decision of a Full Bench of this Court in (7) Jhakar Ahir and others V. Province of Bihar (A.I.R. 1945 Patna 98). Those were not the cases of want of jurisdiction. In Purshottam Jethanand’s case the Magistrate of the First Class, who was not empowered to take cognizance did take cognizance of the offence under Section 190(1)(a) and (b) in good faith. It was fully covered by Section 529 of the Code of Criminal Procedure. Those were not the cases of want of jurisdiction. In Purshottam Jethanand’s case the Magistrate of the First Class, who was not empowered to take cognizance did take cognizance of the offence under Section 190(1)(a) and (b) in good faith. It was fully covered by Section 529 of the Code of Criminal Procedure. It was, therefore, held that in absence of any prejudice to the accused the defect was cured by Section 529 Cr.P.C. In Jhakar Ahir’s case also question was whether the court was empowered to take cognizance though it had jurisdiction to try the offence. In that connection, Shearer, J. observed : “Where a Court has jurisdiction to try an offence it is, as a rule, immaterial whether it has taken cognizance of the offence without being empowered to do so or whether the case has been transferred to it by another court which was not empowered to make the ORDER :of transfer. Clauses (e) and (f) of Section 529 Cr.P.C. provides that the commission of some irregularity of this kind prior to the commencement of the trial does not vitiate the trial itself.” These cases are, therefore, of no assistance to the petitioner. In (8) Queen Empress V. Chidda and others (20 Allahabad 40) question was whether pardon granted by District Magistrate or Etah to an accused in respect of an offence committed in jurisdiction of District Magistrate of Muttra could be considered as valid by invoking aid of Section 529 Cr.P.C. In that connection it was observed as follows : – “In our opinion Section 529 refers to quite different circumstances. It is a section which deals with acts done by a Magistrate in no way empowered by law to do those acts; it has no reference to a Magistrate empowered otherwise under the Act to tender pardon, but not possesing jurisdiction over the particular offence.” In (9) Ramdin Lal V. Emperor (A.I.R. 1937 Patna 176) application of Section 529 arose for consideration. Complaint of offence under Section 193 I.P.C. was not filed by proper authority and thus essential requirement under Section 195 (b) Cr.P.C. for taking cognizance was not fulfilled. Nonetheless cognizance was taken and trial was held. Complaint of offence under Section 193 I.P.C. was not filed by proper authority and thus essential requirement under Section 195 (b) Cr.P.C. for taking cognizance was not fulfilled. Nonetheless cognizance was taken and trial was held. Question arose if trial was saved on account of Section 529 Cr.P.C. Repelling the contention it was observed : “Not be so empowered’ refer to want of power in the Magistrate rather than a defect in or absence of the complaint itself………………………………… The case where there is a statutory bar to the taking of proceedings appears to me to stand on its own footing. It comes under the rule that where a statute says that a particular thing shall not be done unless a bar is removed the statutory prohibition stands, and everything done in contravention of the prohibition is bad”. In both these cases there was want of jurisdiction for one reason or the other, but there was no want of power and hence Section 529 was not applied. Therefore, in my opinion, there is no substance in this contention as well. Assuming that the defect amounted to only irregularity curable under Section 529 Cr.P.C. but when this irregularity was detected by the trying Magistrate before the trial concluded and if he sent back the record to the Sub-divisional Magistrate for consideration of the complaint according to law, how can it be said that the ORDER :of the trying Magistrate is legally bad. The trying Magistrate could do so at any state of the trial. This Court cannot interfere in the right course adopted by the trying Magistrate and direct that he should proceed with the irregularity in the hope that it would be curable under Section 529 Cr.P.C. Therefore, there is no reason to interfere with the impugned ORDER :. The revision application is, therefore, dismissed. Application dismissed.