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1973 DIGILAW 182 (PAT)

Mishri Mandal v. Nageshwar Singh

1973-09-14

B.P.JHA

body1973
JUDGMENT B. P. JHA, J. The petitioners have moved this petition under section 561 A of the Code of Criminal Procedure (here-in-after referred to as 'the Code') before this Court for quashing the order dated 7th September, 1970 passed by the Sub-Divisional Magistrate Monghyr. By this order the Sub-Divisional Magistrate took cognizance of the offences against the petitioners. 2. The relevant facts are these :- There was a proceeding under section 145 of the Code between the parties. The land in dispute in the said proceeding was settled by bid to Nageshwar Singh (Complainant-Opposite party). On 22nd June, 1970 bidding was done and the complainant's bid was accepted. The complainant also deposited the bidding amount. 3. In the proceeding under section 145 of the Code, the Magistrate made a reference to the Munsif under section 146 (1) of the Code and the Munsif decided the reference by the order dated 30th June, 1970. In view of the order dated 30th June, 1970 the 2nd party (some of the petitioners) moved a petition on 1st July, 1970 before the Magistrate that no "parwana" (order of settlement for taking possession of the settled land) be issued to the complainant (Nageshwar Singh) and accordingly, "Parwana" was not issued to the bidder Nageshwar Singh). In the absence of any "parwanas the bidder was not directed by the Magistrate to take possession. 4. On 25th July, 1970 a complaint petition was filed by Nageshwar Singh (complainant Opposite party) before the Gram Cutcherry in respect of offences under sections 447, 147, 148, and 379 of the Indian Penal Code. The complainant was examined on oath by the Sarpanch. The complainant disclosed that the complainant had taken settlement of the disputed land and he had grown maize crops in it. On the date of the occurrence, these petitioners formed an unlawful assembly and they cut away standing maize crops. It is for the trial court to find out as to whether the complainant was in possession of the disputed land at relevant time of the occurrence or not. 5. The Sarpanch also made enquiry and came to the conclusion that the Gram Cutcherry was not competent to try the case as the offences involved are under sections 447, 147, 148 and 379, Indian Penal Code. 5. The Sarpanch also made enquiry and came to the conclusion that the Gram Cutcherry was not competent to try the case as the offences involved are under sections 447, 147, 148 and 379, Indian Penal Code. In this view of the matter, the Sarpanch, on 3rd August, 1970, forwarded the complaint petition along with the report to the Sub-divisional Magistrate. From the order dated 7th September, 1970 it appears that the Sub-Divisional Magistrate perused the report of the Sarpanch. The complaint petition of Nageshwar Singh lodged before the Sarpanch was part of the enquiry report of the Sarpanch. 6. It is clear that the Magistrate took cognizance of the offence on the basis of the complaint already filed before the Gram Cutcherry. The counsel for the opposite party contended that the cognizance was already taken before the Sarpanch and the Sub-divisional Magistrate had the authority under section 70 of the Bihar Panchayat Raj Act, 1947 to withdraw the case from the Gram Cutcherry. No doubt section 70 authorizes the Sub-divisional Magistrate to withdraw any case pending before a bench of the Gram Cutcherry. The Counsel means to say that if cognizance had been taken by the Sarpanch, the same cognizance will continue under the provisions of the Code of Criminal Procedure. I do not accept his submission. Once a complaint petition is withdrawn from the Gram Cutcherry, the procedure laid down in the Code of Criminal Procedure should be followed. The complainant should lodge a fresh complaint and the complainant should be examined on oath by the Sub-Divisional Magistrate in accordance with section 200 of the Code. Then only the Sub-divisional Magistrate can take cognizance under section 190 (1) of the Code, section 70 of the Bihar Panchayat Raj Act does not abrogate section 190 (1) of the Code. 7. In the present case rule 43 of the Bihar Gram Cutcherry Rules, 1952 is relevant which is as follows : “43. Then only the Sub-divisional Magistrate can take cognizance under section 190 (1) of the Code, section 70 of the Bihar Panchayat Raj Act does not abrogate section 190 (1) of the Code. 7. In the present case rule 43 of the Bihar Gram Cutcherry Rules, 1952 is relevant which is as follows : “43. Sarpanch to decide about maintainability of case.-If after taking the statement of the complainant on oath or solemn affirmation under rule 42, the Sarpanch is of the opinion- (a) that it does not disclose any offence or discloses an offence beyond the competence of the Bench of the Gram Cutcherry, he shall summarily dismiss the complaint and inform the complainant of his order forthwith; (b) that it discloses an offence cognizable by a bench of the Gram Cutcherry, he shall take cognizance and at the first instance issue summons to the accused intimating to him the offence of which he is charged and directing him to appear before the bench on the date fixed therein. If the summons is not served by the date fixed, it shall be renewed." Rule 43 provides that if the complaint discloses an offence beyond the competence of the bench of the Gram Cutcherry, the Sarpanch shall summarily dismiss the complaint. In the present case, the Sarpanch held that the offences disclosed are beyond the competence of the bench of Gram Cutcherry and therefore, he was bound to dismiss the complaint and he had no jurisdiction to refer the Complaint petition and the enquiry report to the Sub-divisional Magistrate. I, therefore, hold that the cognizance taken on the basis of the enquiry report as well as on the basis of the complaint petition lodged before the Gram Cutcherry is illegal. In my opinion, the cognizance taken before the Gram Cutcherry cannot be deemed to be continued before the Sub-divisional Magistrate for the simple reasons that the complaint before the Gram Cut cherry will be deemed to be dismissed in view of rule 43 (a) of the Gram Cutcherry Rules. If it is so, Nageshwar Singh will have to file a fresh complaint for a fresh proceeding under section 190 (1) (a) of the Code. In this view of the matter, 1 quash the order of the Sub-divisional Magistrate dated 7th September, 1970. The application is allowed. Application allowed.