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1972 DIGILAW 7 (PAT)

Birendra Singh v. State Of Bihar

1972-01-06

B.D.SINGH

body1972
Judgment 1. This application by the various accused under Sections 435 and 439 of the Code of Criminal Procedure is directed against the order dated the 6th May, 1969 passed by the judicial Magistrate whereby he has refused to discharge the petitioners arid fixed certain date for framing charges against them. 2. In order to appreciate the point involved in this case it will be necessary to state briefly the facts. One Dinesh Pandey lodged first information report before the police on the 23rd June, 1967, alleging therein that while he was irrigating his land by water of the Government tube-well, the petitioners arrived there and forcibly diverted the water from the main channel to their Tola. Subsequently, when the petitioners returned to their village, Dinesh Pandey again opened the channel and began to irrigate his field. The petitioners again came there and assaulted Dinesh Pandey and his brother. After investigation the police submitted charge-sheet against the petitioners under Sec.147 of the Indian Penal Code (hereinafter referred to as the Code). On the 14th September, 1967, the Sub-divisional Magistrate took cognizance under Sec.147 of the Code and transferred the case to Bharokhara Gram Cutcherry as the offence was exclusively triable by it. He further directed the petitioners to appear before the Gram Cutcherry on the 29th September, 1967. On the 6th February, 1968 the informant filed a petition alleging therein that the police in connivance with the petitioners had tried to make out a case under Sec.147 although clear offence under Sec.148 had been committed by the accused. Since the offence under Sec.148 is not triable by the Gram Cutcherry, the informant further prayed in the said petition that the case, which was transferred to the Gram Cutcherry, may be recalled and be transferred to some Judicial Magistrate for disposal. From the order sheet dated the 13th February, 1968, it transpires that the Sub-divisional Magistrate ordered that the application should be put up along with the record on the 26th February, 1968. Ultimately on the 28th August 1968 he passed an order whereby he recalled the case from the Gram Cutcherry and transferred it for disposal to Mr. Ram Janam Singh, Munsif Magistrate, Subsequently it was transferred to Shri G. D. Mishra Judicial Magistrate. 3. On the 1st May, 1969, the petitioners filed a petition before Mr. Ultimately on the 28th August 1968 he passed an order whereby he recalled the case from the Gram Cutcherry and transferred it for disposal to Mr. Ram Janam Singh, Munsif Magistrate, Subsequently it was transferred to Shri G. D. Mishra Judicial Magistrate. 3. On the 1st May, 1969, the petitioners filed a petition before Mr. G. D. Mishra, alleging therein that the police had submitted charge-sheet against the petitioners only under Sec.147 and the cognizance was also taken by the Sub-divisional Magistrate under that very section, which is exclusively triable by the Gram Cutcherry as provided under Sections 62 and 68 of the Bihar Panchayat Raj Act, 1947 , (hereinafter referred to as the Act). The sub-divisional Magistrate after having transferred the case to the Gram Cutcherry for disposal had no jurisdiction to recall it by order dated the 28th August, 1968, without cancelling its jurisdiction, as required under Section 70 of the Act. Therefore, the order passed by the Sub-divisional Magistrate on the 28th August, 1968, was without jurisdiction. On the basis of the said order the trial of the petitioners before Mr. G. D. Mishra would be also without jurisdiction. In that view of the matter the petitioners prayed that they should be discharged. After hearing the parties the learned Magistrate passed the impugned order. 4. Mr. Thakur Prasad, learned counsel appearing on behalf of the petitioner, has challenged the impugned order and raised chiefly two points for consideration by this Court. They are : (i) when the police submitted charge-sheet against the petitioner only under Sec.147, the petitioners could not have been tried by the judicial Magistrate as the offence under that section is exclusively triable by the Gram Cutcherry as provided by Sections 62 and 68 of the Act; and (ii) when the Sub-divisional Magistrate sent the case to the Gram Cutcherry by order dated the 14th September, 1967, he could not have recalled the same by his subsequent order dated the 28th August, 1968, without assigning any reasons as required under S. 70 of the Act. 5. I will take up for consideration point no. (i) first. It is conceded that the offence under Sec.147 of the Code is exclusively triable by the Gram Cutcherry as provided under Sections 62 and 68 of the Act. 5. I will take up for consideration point no. (i) first. It is conceded that the offence under Sec.147 of the Code is exclusively triable by the Gram Cutcherry as provided under Sections 62 and 68 of the Act. The acute controversy, however, between the parties is as to on what basis the jurisdiction of the Gram Cutcherry and the judicial Magistrate is ascertained. According to Mr. Thakur Prasad, since in the instant case the petitioners were charge-sheeted only under Sec.147 of the Code and the cognizance was also taken under the same section, that is enough to confer exclusive jurisdiction on the Gram Cutcherry. In order to find support to his contention, he relied on Jagdish Yadav V/s. The State of Bihar, (1960 BLJR 200), where Sahai, J. was considering the provisions contained in Sections 62 and 69 of the Act in relation to offences under Sections 323, 451 and 452 of the Penal Code. In that case the petition of complaint made out a case of an offence under Sec.323 of the Code as well as offences under other sections including Sections 451 and 452. The offences under Sections 451 and 452 are not triable under Sec. 62 of the Act by a Bench of Gram Cutcherry. It was therefore, open to the Sub-divisional Magistrate to take cognizance of the case provided he thought that there was a prima facie case of offences under Sections 451 and 452 to be tried. He did not however, do so. He took cognizance of an offence only under Sec.323 against the petitioners of that case. His Lordship held that though the Sub-divisional Magistrate was entitled under Sec. 68 of the Act to take cognizance of the case he was bound under Sec. 69 to transfer the case at once to the bench having jurisdiction over the case when he found that, in his opinion, a prima facie case of an offence under Sec.323 only was to be tried, that section being triable by a bench of the Gram Cutcherry under Sec. 69. 6. On the other hand, Mr. 6. On the other hand, Mr. Yogendra Mishra, learned counsel appearing on behalf of the opposite party, advocated that the forum of the trial depends upon the allegations made in the petition of complaint and not upon the cognizance being taken by the Sub-divisional Magistrate under S. 62 of the Act Learned counsel appearing on behalf of the State also adopted the argument advanced by Mr. Mishra. In order to substantiate his submission. Mr. Mishra relied on a Bench decision of this Court in Mahadeo Choudhary V/s. State, 1971 BLJR 378 : (1971 Cri LJ 1672), where Anwar Ahmad and P. K. Banerje, JJ. were dealing with the provisions contained in Sections 62 and 68 of the Act with regard to the offences committed under Sections 323, 353 and 379 of the Code. It may further be noticed that the case was referred to the Division Bench because there was a conflict of decision between the two single Judges of this Court in, (1960 BLJR 200) (supra) and Prayag Pasi V/s. The State, AIR 1958 Pat 585 : (1958 Cri LJ 1339), with regard to the forum of the trial as to whether it depends on the cognizance being taken by the Sub-divisional Magistrate or upon the allegation made in the petition of complaint. Their Lordships after surveying the various Division Bench decisions of this Court on this point at page 380 held that the forum of the trial depends upon the allegation made in the petition of complaint and not on the cognizance being taken by the Sub-divisional Magistrate under Sec. 62 of the Act. If the petition of complaint discloses offence falling under Sec. 62 of the Act as well as other offences, which are not enumerated therein the case has to be tried by the Courts established under the Code of Criminal Procedure. In such a case even if the Sub-divisional Magistrate takes cognizance only of an offence or offences, which are enumerated under Sec. 62 of the Act, a bench of Gram Cutcherry cannot try the same. 7. In view of the above observations, in my opinion, the submission of the learned counsel for the opposite party has got to be accepted in this regard. Reference may be made to another Bench decision of this Court in Dhani Sah V/s. Suchan Sah, (1969 BLJR 627) where Untwalia and M. P. Verma, JJ. 7. In view of the above observations, in my opinion, the submission of the learned counsel for the opposite party has got to be accepted in this regard. Reference may be made to another Bench decision of this Court in Dhani Sah V/s. Suchan Sah, (1969 BLJR 627) where Untwalia and M. P. Verma, JJ. were dealing with the provisions contained under Sections 62 and 73 of the Act in relation to an offence under Sections 323 and 324 of the Code. The latter offence is not triable by a Court of Gram Cutcherry. The said Gram Cutcherry had no jurisdiction to take cognizance of the offence or offences made out in the complaint petition. The whole trial was vitiated on that account. It is manifest that the order of the Gram Cutcherry convicting the petitioners and sentencing them to pay various sums of fine was without jurisdiction. The question of taking cognizance does not depend upon the proof of the fact at the trial. At the time of taking cognizance on facts stated in the complaint it is the duty of the Gram Cutcherry to see as to whether it will have jurisdiction to try the case under Sec. 62 of the Act on the allegations made out in the complaint petition. If it comes to the conclusion that on those allegations it will have no jurisdiction it has got to refuse to take cognizance of the case and leave the complainant to go and file his complaint petition before the Sub-divisional Magistrate. The Gram Cutcherry cannot take cognizance on the assumption that the facts alleged may not be found to be true to the extent they have been alleged. From the observations of their Lordships I have no doubt in my mind that it is the allegation made in the complaint which determines the forum. In the instant case I have already mentioned that the protest petition, which was filed by the opposite party clearly mentions an offence under S. 148 of the Code. The first information report also discloses offences under Sections 148 and 324 of the Code, obviously these offences are not triable by the Gram Cutcherry as enumerated under Sec. 62 of the Act. Therefore, there is no merit in the contention of the learned counsel for the petitioners under point No (i). 8. Now I shall advert to point No. (ii) Mr. Therefore, there is no merit in the contention of the learned counsel for the petitioners under point No (i). 8. Now I shall advert to point No. (ii) Mr. Thakur Prasad drew my attention to the provisions contained under Section 70 of the Act, which provides the circumstances in which a case can be withdrawn from the Gram Cutcherry by the Sub-divisional Magistrate. It will be relevant to quote the said section in extenso; "The Sub-divisional Magistrate or the Munsif may of his own motion or on information received, withdraw any case or suit pending before a bench of the Gram Cutcherry, if for reasons to be recorded by him in writing he is of opinion that such case or suit ought not to be tried or heard by such bench and may try or hear the case or suit either himself or transfer it to another competent Magistrate or Munsif 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." Learned counsel had emphasised that while passing an order of withdrawal it is incumbent upon the Sub-divisional Magistrate to record the reasons in his order. In the instant case while passing the order dated the 28th August, 1968, he had not recorded any reason for doing so. One is left at guessing as to what was the reason for withdrawing the case from the Gram Cutcherry. 9. In my opinion, on the facts and in the circumstances of the case this submission also of the learned counsel is not acceptable. It may be observed that if the petitioners had any grievance against the order or withdrawal, they ought to have come against that order to this Court but they did not do so. They waited till the impugned order was passed. In this application also before this Court, the petitioners it seems are aggrieved only against the impugned order which was passed on the 6th May, 1969. It is true that in appropriate case this Court can set aside suo motu even earlier order about which no grievance has been made by the petitioners provided the said order has ignored any mandatory provisions of law due to which it cannot be sustained. It is true that in appropriate case this Court can set aside suo motu even earlier order about which no grievance has been made by the petitioners provided the said order has ignored any mandatory provisions of law due to which it cannot be sustained. Learned counsel for the opposite party contended that the provision with regard to the recording of the reasons under Section 70 is a mere irregularity. In order to find support to his contention he relied on Ramakant Bajpai V/s. Banbari Sahu, (1957 BLJR 41) where Sahai, J. while dealing with the provisions contained in Section 70 of the Act, held that the failure of the Sub-divisional Magistrate to give reasons for withdrawing a case from the Gram Cutcherry and transferring it to the file of another Magistrate amounts merely to an irregularity and not an illegality. In my opinion, much reliance cannot be placed on the above observation of Sahai, J. in view of the fact that the provision for giving reasons in Section 70 was inserted subsequently by Amending Act of 1959. It is suffice to hold that in the instant case no prejudice was caused to the petitioners. On reference to the protest petition as well as the first information report, it is obvious that the offences disclosed therein were not triable by the Gram Cutcherry and that was the reason which weighed with the learned Sub-divisional Magistrate, while recalling the case from the Gram Cutcherry by order dated the 28th August, 1968. In that view of the matter, I am not inclined to interfere with that order, which was passed by the Sub-divisional Magisttrate. If I accept that order as correct, it follows that the impugned order is also valid. 10. The impugned order can also be justified on the alternative ground that the application dated the 1st May, 1969, which the petitioners had filed before the Magistrate was not entertainable as it did not lie within his jurisdiction to discharge the petitioners on that ground. The petitioners remedy if at all lay under Sec. 69 of the Act, vide Mohammad Nazeem V/s. State, (1970 BLJR 1051). Reference may also be made to Lachuman Raut V/s. Mst. Basmatia, (1964 BLJR 689) where Anant Singh and G. N. Prasad JJ. The petitioners remedy if at all lay under Sec. 69 of the Act, vide Mohammad Nazeem V/s. State, (1970 BLJR 1051). Reference may also be made to Lachuman Raut V/s. Mst. Basmatia, (1964 BLJR 689) where Anant Singh and G. N. Prasad JJ. observed that unless the sub-divisional Magistrate exercises the jurisdiction vested in him under Sec. 69 of the Act, the Magistrate has jurisdiction and is competent to hear and dispose of the case. These jurisdictions cease only when the transfer of the case is made under S. 69. Reference may further be made to Md. Obais V/s. The State (1959 BLJR 61) where Sahai and Untwalia, JJ. held at page 68 in paragraph 21 that there is nothing in Sec. 69 to show that a trying Magistrate must bring to the notice of the sub-divisional Magistrate that a case which is pending trial in his court, appears to be triable by a bench of the Gram Cutcherry, the Sub-divisional Magistrate cannot act unless he is informed of the fact. Their Lordships also approved the judgment in AIR 1958 Pat 585 supra : (1958 Cri LJ 1339) where Kanhaiya Singh, J. observed; "Unless the Sub-divisional Magistrate exercises the discretion vested in him under Sec. 69 of the said Act, the Magistrate has jurisdiction and is competent to hear and dispose of the case. "Their Lordships in the case of Md. Obais further quoted with approval the observation made by Misra, J. as he then was in connection with the provision contained in Sec. 69 of the Act, which reads: ".........The case being in seisin of a Magistrate other than the Sub-divisional Magistrate, there is no provision in the section that the Magistrate holding the trial must necessarily return the file to the Sub-divisional Magistrate or that he must necessarily intimate to him that the case pending before him is one which is fit to be tried by a bench of the Gram Cutcherry. In terms therefore the section is not "applicable." After considering various cases on the point their Lordships held that the judicial Magistrate did not commit any illegality in trying and deciding the case. 11 Mr. Thakur Prasad however, contended that the trying Magistrate should have sent back the record to the Sub-divisional Magistrate for passing an order in accordance with law. 11 Mr. Thakur Prasad however, contended that the trying Magistrate should have sent back the record to the Sub-divisional Magistrate for passing an order in accordance with law. In order to find support to his contention he relied on a judgment of this court by B. P. Sinha, J. in Damodar Prasad Singh V/s. Baijnath Singh (1969 Pat LJR 147). In that case after arguments were heard an objection was raised on behalf of defence that the trial was without jurisdiction. The Munsif Magistrate held that on the facts and circumstances of the case the Sub-divisional Magistrate was not legally competent to cancel the jurisdiction of the Gram Panchayat and he sent back the record of the case to the Sub-divisional Magistrate for passing orders in accordance with law. Aggrieved by the said order the other side had filed a revision application before this Court. In that view of the matter his Lordship observed at page 153 that the trying Magistrate could do so at any stage of the trial. This Court could not interfere in the right course adopted by the trying Magistrate and would direct that he should proceed with the irregularity in the hope that it would be curable under Sec. 529 of the Code of Criminal Procedure. 12. In my opinion, the above observation of his Lordship does not lend support to the contention of the learned counsel for the petitioners. It may be noticed that in view of the Bench decision of this Court referred to above it was not incumbent upon the Magistrate to sent the file back to the Sub-divisional Magistrate. If in the case of Damodar Prasad Singh, referred to above, the Magistrate sent the case back to the Sub-divisional Magistrate for consideration that does not mean that he had duty to remit it to the sub-divisional Magistrate. Besides that apart with due respects I am not inclined to follow the above observation of his Lordship in view of the Bench decision of this court referred to above. After due consideration from different aspects I am not inclined to interfere with the impugned order. 13. In the result, the application is dismissed and the impugned order is upheld.