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2018 DIGILAW 1469 (HP)

Anil Kumar v. State of H. P.

2018-08-08

DHARAM CHAND CHAUDHARY

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JUDGMENT : DHARAM CHAND CHAUDHARY, J. 1. Heard. 2. Order dated 20.09.2017, Annexure P-1 passed by a Bench of Gram Panchayat, Dhanot, Development Block Dehra, Tehsil Jawalamukhi, District Kangra in a case registered vide FIR No. 80/2017 against the accused-petitioners at the instance of Vijay Singh, respondent No. 3-complainant is under challenge in this petition on the grounds is inter-alia that the jurisdiction to try an offence under Section 341 and 323 IPC though vests with the Gram Panchayat and the challan also filed against the accused-petitioners before Gram Panchayat, however, vide impugned order, the case has been wrongly referred to the Judicial Courts at Dehra. 3. The record reveals that on the basis of the report lodged by respondent No.3-complainant against the accused-petitioners, a case has been registered against them for the commission of an offence punishable under Section 341 and 323 IPC on the completion of the investigation, report against them was initially filed before Gram Panchayat, Dhanot Tehsil Jawlamukhi, District Kangra H.P. The Gram Panchayat instead of taking cognizance has referred the matter to the Judicial Courts at Dehra on the ground that the accused-petitioners do not listen to the Gram Panchayat. The case is now pending in the Court of learned Judicial Magistrate Dehra, District Kangra H.P. The record reveals that notice of accusation was put to the accused-petitioners. 4. It is seen that offence punishable under Sections 341 and 323 IPC is triable by Gram Panchayat. The Gram Panchayat can only forwarded the case to the Court of nearest Judicial Magistrate only under any of the eventuality mentioned below. Section 37 of the Himachal Pradesh, Panchyati Raj Act 1994. The same reads as follows. “37 Return of complaints:- If at any time, it appears to Gram Panchayat,- (a) that it has no jurisdiction to try any case before it; or (b) that the offence is one of which it cannot award acquitted punishment; or (c) that the case as is of such a nature or complexity that it should be tried by a regular court, it shall return the complaint to the complainant directing him to file it before the Magistrate having jurisdiction to try such case.” 5. It is seen that none of the eventuality exists, warranting transfer of the case by the Gram Panchayat to the nearest Magistrate. It is seen that none of the eventuality exists, warranting transfer of the case by the Gram Panchayat to the nearest Magistrate. The provisions contained under Section 64 of the Act further reveal that in the event of the accused fails to appear or could not be located, the Gram Panchayat may forward case to the nearest Magistrate. The Magistrate shall ensure the attendance of the accused by way of issuing bailable warrants and on execution of the warrants and furnishing personal/surety bond, direct the accused to appear before the Gram Panchayat. Such was not the position in the case in hand, because the accused-petitioners do not listen to the Gram Panchyat is not a ground to refer the case to the Court of nearest Judicial Magistrate. Learned Judicial Magistrate, as such, should have returned the case to the Gram Panchayat for trial in accordance with law, instead of entertaining the same and proceeding further with the trial. 6. Therefore, the impugned order dated 22.03.2018, Annexure P-2 Colly. is quashed and set aside. There shall be a direction to learned Judicial Magistrate to forward the record to the Gram Panchayat for trial in accordance with law. 7. The petition, as such, is allowed. There shall be a direction to the accused-petitioners and respondent No. 3-complainant through learned counsel representing them to appear before Gram Panchayat, Dhanot on 06.09.2018. Learned Judicial Magistrate, Dehra, District Kangra HP to remit the record to the Gram Panchayat so as to reach there well before the date fixed. An authenticated copy of this judgment be supplied for learned Judicial Magistrate Dehra, District Kangra for compliance.