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2014 DIGILAW 1641 (HP)

Surinder Kumar v. Parkash Chand

2014-11-14

TARLOK SINGH CHAUHAN

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JUDGMENT : Tarlok Singh Chauhan J. This petition under Section 482 of Cr.P.C. is directed against the order dated 28.7.2014 passed by learned Judicial Magistrate, IInd Class, Court No. IV, Hamirpur, H.P., whereby appeal filed by the petitioner was dismissed and the order passed by Gram Panchayat Badehar, Tehsil Bhoranj is affirmed. 2. It appears that there was a family dispute between the two brothers and on the instigation of one of the brothers, their father made a complaint before the Gram Panchayat against the present petitioner. However, during the pendency of these proceedings, the petitioner and his father have amicably settled the dispute, as stated by the learned counsel representing the father, who is respondent herein. 3. In this view of the matter, the orders passed by the Gram Panchayat, Badehar dated 24.7.2012 and affirmed by the learned Judicial Magistrate on 28.7.2014 are quashed and set aside. 4. Normally this Court would have left the case at this stage, but it cannot ignore the manner in which the learned Magistrate below has decided the present case and it leaves much to be desired. He has simply relied upon Section 114 of the Evidence Act and then affirmed the order passed by the Gram Panchayat, as would be clear from the following observations:- “6. During oral arguments learned counsel for appellant has reiterated his version made in the appeal by submitting that the Panchayat has not followed the procedure prescribed. 7. The appellant has filed the appeal to set aside the impugned order on the ground that the same is against law, fact and procedure, but he has not lead any evidence in proof of the said fact. The other contention of the appellant is that the impugned order has been passed against the principle of natural justice on the ground that the impugned order was passed behind the back of the appellant, but perusal of the Panchayat record reveals that a notice was duly served upon the appellant and thereafter the appellant has put his appearance before the concerned Gram Panchayat and during the proceedings before the Gram Panchayat, he caused interruption in the proceedings. Even appellant not disputed his appearance before Gram Panchayat Bedehar on dated 24.07.2012. 8. Even appellant not disputed his appearance before Gram Panchayat Bedehar on dated 24.07.2012. 8. As per Section 114 of the Indian Evidence Act, court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. 9. In the present case, I have no hesitation to raise presumption under Section 114 of the Indian Evidence Act that appellant caused interruption in the proceedings in light of following effects:- i) that proceeding was conducted before the Gram Panchayat. ii) there is no allegation regarding any ill-will of the respondent against the appellant. iii) appellant has not lead evidence to prove that he had not caused any interruption. 10. Thus, in the present case, the contention of the appellant that the order was against principle of natural justice, has no substance as the Gram Panchayat concerned gave opportunity to appellant being heard, but he caused interruption in the proceedings of the Gram Panchayat. 11. The other contention of the appellant that the Gram Panchayat has decided the case without going into the matter, also got no substance as no evidence was lead by the appellant. It is settled law that pleadings of a party do not prove the case and the case is required to be proved by leading cogent evidence. In the present case, appellant failed to lead any evidence in support of his pleadings. 12. In view of the above discussion, point No. 1 is answered in the negative and decided against the appellant.” 5. Even while affirming the order passed by the Gram Panchayat, there had to be a conscious application of mind and the findings had to be supported by reasons on all points which had to be put forth and pressed by the parties and in no event support could have been drawn from Section 114 of the Indian Evidence Act. 6. More than three decades back this Court in Sunka Ram Vs. Gram Panchyat Patta and another, 1984 Shimla Law Cases, 230 had held the imposition of recurring penalty of Rs.1/- per day till the breach continues to be bad in law, but despite this authoritative pronouncement, the Panchayats continue to impose such penalties and such orders invariably are upheld in appeal by the Courts. Gram Panchyat Patta and another, 1984 Shimla Law Cases, 230 had held the imposition of recurring penalty of Rs.1/- per day till the breach continues to be bad in law, but despite this authoritative pronouncement, the Panchayats continue to impose such penalties and such orders invariably are upheld in appeal by the Courts. The point is not that a Court or Panchayat cannot impose a recurring fine for a continuance breach of an order of this kind, but that it cannot do so on the first conviction of the offender for breach, since by doing so, it would tantamount to imposing fine for an offence not yet committed, which cannot be done. In other words, after a conviction for disobedience of an order of this kind, whether passed by Panchayat or any other authority, the recurring fine can only be imposed after the continuance of breach has taken place and as long as the breach continues, the Panchayat or Court must call the offender and impose the recurring fine on him from time to time as it becomes due. This petition is disposed of in the aforesaid terms, leaving the parties to bear their own costs.