Dhani Sah and Others vs Suchan Sah and Others

N.L. Untwalia and M.P. Verma, JJ.—The petitioners, who were convicted by the Gram Cutchery of Raksi in the district of Santal Parganas u/s 323 of the Penal Code and sentenced to pay various sums of fine, have obtained a rule from this Court against the opposite party to show cause why the order of conviction and imposition of sentence be not set aside. Mr. Mani Lali has appeared in support of the rule, and Mr. Hari Prasad Sharaf has shown cause on behalf of the complainant--opposite party No. 1.

A complaint was filed by opposite party No. 1 alleging assault on certain persons by ''lathis''. In. the. complaint petition it, was, also stated that petitioner Puran Sah was brandishing a langa all around with his one hand in order to frighten, the complainant and men on his side. Due to the brandishing of the tanga. Jagan Sah received injury on the left side of his head, and Gobardhan Sah got a cut injury on his nose. It is therefore, clear that the allegations as made, if true, showed the commission of an offence not only u/s 323 but also u/s 324 of the Penal Code, The latter offence is not triable by a court of Gram Cutchery, The said Cutchery 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 Cutchery convicting the petitioner''s and sentencing them to pay various sums of fine was without jurisdiction;

The learned Subdivisional Magistrate was moved u/s 73 of the Bihar Panchayat Raj. Act, 1947 (hereinafter called the ''Act'') He refused to entertain the point, which has been urged before us and was urged before him also, on the ground that the medical certificate furnished on record did not show that any person had sustained any cut injury. Apart from the fact that the reading of the medical certificate is not quite accurate as it does show a linear scratch on the nose of Gobardhan which may be held to be a cut injury the question of taking cognizance does not depend upon the proof of the facts at the trial. At the time of taking cognizance, on the facts stated in the. complaint, it is the duty of the Gram: Cutchery, to see as to whether it will have jurisdiction to try the case u/s 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 Subdivisional Magistrate. The Gram Cutchery cannot take cognizance on the assumption that the facts alleged may not be found to be true to the extent they have been alleged. Reference in this connection may be made to the Bench decision of this Court in Bimal Singh v. State of Bihar 1965 B.L.J.R. 661 and the decision of a learned Single Judge in Kameshwar Singh v. Bansropan Chaudhry 1961 B.L.J.R. 65. We may also point out that the learned Sub-divisional Magistrate had no power to reduce the sentence of fine in case of any of the petitioners u/s 73 of the Act. The exercise of the power under the said provision cannot travel beyond it.

In the result, we allow the application and quash the proceedings which were initiated before the Gram Cutchery on the filing of the complaint by opposite party No. 1 and the order of the Gram Cutchery recording the conviction and imposition of sentence upon the petitioners. The order of the Sub-divisional Magistrate is also quashed.

The complainant, if so advised, may file a fresh complaint before , the Sub-divisional Magistrate of Rajmahal at Sahebganj in the district of Santhal Parganas. If such a complaint is filed, the Sub-divisional Magistrate may deal with it in accordance with law, as he thinks fit and proper.