Goni Mahton and Others vs Emperor

Agarwala, J.—The first question that arises on this application is whether this Court has power to revise the proceedings of a panchayat under the Bihar and Orissa Village Administration Act, 1922. u/s 435, Criminal P.C., this Court has power to call for the records of all inferior criminal Courts situate within its local jurisdiction and to revise the orders of such Courts. Section 6 of the Code provides:

Besides the High Courts and the Courts constituted under any other law than this Code for the time being in force, there shall be five classes of criminal Courts in British India, namely, Courts of Session, Presidency Magistrate and Magistrates of the first, second and third class.

The question is, whether a panchayat is a Court constituted under any other law within the meaning of Section 6. u/s 6, Village Administration Act, the local Government; is empowerd, in any area in which a Union Board has been constituted, to direct the members of the Union Board to elect from among their own number three or more persons to be, during their term of office as members of such Union Board, a panchayat.

u/s 7, the local Government 13 empowered to direct that a panchayat shall be established even where no Union has been constituted. By Section 58(1) of the Act it is declared that a panchayat constituted u/s 6 or Section 7 shall have jurisdiction with that of the criminal Court within the local limits of whose jurisdiction the panchayat circle is situated to take cognizance of and to try the offences specified in that Sub-section. Sub-section (2) of the same section authorizes certain Magistrates to transfer to a panchayat for trial certain offences not specified in Sub-section (1). Section 56 enables the local Government to empower panchayats with jurisdiction in certain other offences. Civil jurisdiction is conferred on panchayats by Section 57 and the following sections. A case or suit before a panchayat is required by Section 64 of the Act to be instituted by petition made orally or in writing.

Section 65 authorizes a panchayat to dismiss a petition if, on the face of it, it appears to be frivolous and vexatious. If it has no jurisdiction to try the particular case or suit it is required by Sub-section (2) to direct the petitioner to the proper Court.

If the petitioner who initiated the case or suit fails to appear on the date fixed or shews negligence in prosecuting his case or suit, the panchayat may dismiss the case or suit for default (Section 66). If the petition is not dismissed the panchayat is required by Section 67(1) to require the accused or the defendant to appear and answer the petition either orally or in writing. If the accused fails to appear or cannot be found Sub-section (4) requires the panchayat to report to the nearest Magistrate who is then authorized to issue a warrant with bail for the arrest of the accused, and forward him, when appearing for trial, to the panchayat, or release him on bail to appear before it. If the accused appears to answer the petition and claims to be tried by a Magistrate, the panchayat must direct the complainant to file a complaint before a proper Court (Section 68). Section 74 requires the panchayat to record in writing its sentence or decree and directs that such sentence or decree shall be pronounced on hearing the parties and their evidence and that it shall be just, equitable and according to good conscience; but, in arriving at that decision, the panchayat is declared to be not bound by any laws of evidence or procedure other than the procedure prescribed by or under this Act.

In the event of the members of the panchayat disagreeing the decision of the majority is to prevail (Section 75). There is no right of appeal from a conviction by a panchayat; but if the District Magistrate or Sub-divisional Magistrate is satisfied that a failure of justice has occurred he may of his own motion by an order in writing cancel or modify any order of conviction or compensation made by a panehayat or direct the retrial of any case by a Court of competent jurisdiction subordinate to him. Section 90 requires the Local Government to prescribe the procedure to be followed by panchayats and Section 96(2)(k) authorizes the Local Government to make rules for regulating the procedure to be followed by panchayats.

Under the authorities thus conferred the Local Government have framed rules which are published in the Bihar and Orissa Village Administration Manual of 1932. The rules with regard to criminal cases are Nos. 11 to 21 and the rules were published with Notification No. 3649 of the 3rd of April 1923, at p. 68 of the Manual. In criminal cases the panchayat is required to examine the complainant on oath or solemn affirmation. If the accused does not admit his guilt, or claim to be tried by a Magistrate u/s 68, Rule 15 requires that the panchayat shall proceed to hear the complainant and take all such evidence as may be produced in support of the prosecution and also to hear the accused and take all such evidence as he produces in defence. A summary of the evidence of each witness ''must be recorded in the appropriate place in the register of cases and the order of the panchayat must be similarly recorded.

The question whether a panchayat is an inferior criminal Court within the meaning of Section 435, Criminal P.C. has not been considered hitherto. In Ram Chandra Singh v. Baldeo Singh AIR 1940 Pat 184 this Court revised an order passed by a panchayat in exercise of its criminal jurisdiction but the question whether this Court had power to revise such an order was not agitated. I have been referred to eases under other Acts in which provisional power of the High Court has been discussed.

In Ram Gopal Goenka Vs. Corporation of Calcutta, the position with regard to Magistrate appointed under the Calcutta Municipal Act, 1923, was under consideration. Section 531 of that Act empowers a local Government to appoint Magistrates for the trial of offences against the Act and the rules or bye-laws made under the Act. It was held that a Magistrate so appointed would be a criminal Court within the meaning of Section 6, Criminal P.C. and that his orders would be revisableby a High Court.

In Nga E v. Emperor AIR 1924 Rang 23 the question was whether a village head man appointed under the Burma Village Act was a Court within the meaning of Section 6 of the Code. It was held that he was.

In Sat Narain v. Sarju AIR 1924 All. 265 the question was whether the High Court has power u/s 526, Criminal P.C. to transfer a case pending before a panchayat under the United Provinces Village Panchayats Act of 1920. This case is similar in its scope and general outline to the provisions of the Act now under consideration; but the learned Judges who constituted the Bench which heard that case differed.

In Kamlapati Panth Vs. Emperor, the question arose whether the High Court has power to revise an order under the United Provinces Act and it was held that the Court had such power.

In Basdeo Misra Vs. Badal Misra and Others a single Judge held that the High Court had power to transfer a criminal case pending before a panchayat u/s 526, Criminal P.C. There are two provisions of the Act I am considering which appear to me to be a clear indication that a panchayat is a Court. u/s 53(2) proviso (b), Bihar and Orissa Village Administration Act, the District Magistrate or Sub-divisional Magistrate may transfer any case "from one panchayat to another or to any other Court subordinate to him.

Unless the Legislature considered a panchayat to be a Court the word ''other'' in this proviso Is redundant. Similarly, Section 57(2) provides that "no Court other than a panchayat shall take cognizance of any suit" of the class specified in the Sub-section. Here again, the use of the word ''other'' by the Legislature appears to connote that a panchayat is also a Court.

In my opinion therefore a panchayat constituted under the Bihar and Orissa Village Administration Act is a Court and it is, in the exercise of its criminal jurisdiction, an inferior criminal Court, and therefore its orders are revisable u/s 435 of the Code.

With respect to the merits the facts were as follows: On nth July a complaint was made to the panehayat charging the petitioner with theft. Summons was issued to the accused to appear on the 18th. On that day both the complainant and the accused appeared and applied for time for producing their evidence. This prayer was granted and the 22nd was fixed for the hearing. The parties also filed on the 18th a petition stating that they had compromised the case. This was also directed to be put up on the 22nd. On the latter date the panchayat recorded on the petition of compromise that the accused (the present petitioner) had backed out of the compromise. The evidence of the complainant and his witnesses was then recorded. The petitioner alleges that on that date he asked the panchayat to refer the case to a Magistrate u/s 68 of the Act. There is nothing on the record of the panchayat to support the petitioner in this respect and the petition which he filed in the Court of the Sub-divisional Magistrate on that date suggests that what the petitioner did before the panchayat on the 22nd was to ask the panchayat to dismiss the complaint. The petition of the 22nd to the Sub-divisional Magistrate stated that the petitioner appeared before the panehayat and made "a verbal and written request to dismiss the case u/s 68 of the Act on the ground set out-above." The ground set out above was that the charge was a false one and that the sirpanch was a friend of the complainant. The Sub-divisional Magistrate was asked "to dismiss the complaint u/s 68 of the Act and direct them not to proceed."

On this petition the Sub-divisional Magistrate directed the record to be called for and the proceedings before the panchayat to be stayed. The stay order did not reach the panchayat although there is another petition filed by the petitioner on 26th July, in the Court of the Sub-divisional Magistrate stating that the petitioner had informed the panchayat of the stay order. The Magistrate again directed the proceedings to be stayed and called for a report and the record from the panchayat. It is not clear when this order reached the panchayat; but on 29th July, it passed an order convicting the petitioner.

In the circumstances related above, the petitioner claims that his conviction is illegal. His first contention is that the panehayat had no jurisdiction to try the case after he had applied for the matter to be referred to a Magistrate. Section 68 of the Act which confers upon an accused person a right to be tried by a Magistrate, instead of by a panchayat, requires that the petitioner shall claim this right when he appears in answer to a summons. In the present case the summons directed the accused to appear on 18th July. The accused appeared on that date but did not claim to be tried by a Magistrate.

Instead, he made two prayers to the panchayat, one requiring time to produce his evidence and the other the alleged petition of compromise. Even if the subsequent petition alleged to have been filed by the accused on the 22nd asking for the dismissal of the complaint be regarded as an application to have the case tried by a Magistrate, it was not made at the stage when Section 68 requires it to be made.

The next contention is that in view of the stay order which the Sub-divisional Magistrate passed on the 22nd, the panchayat had no jurisdiction to proceed with the trial even though this order failed to reach the panchayat. The only provision in the Act enabling a Sub-divisional Magistrate to interfere with the proceeding of a panchayat in criminal case, while the case is pending, is Section 53(2)(b), which enables either the Sub-divisional Magistrate or the restrict Magistrate to transfer the case. There is no other provision in the Act which enables a Sub-divisional Magistrate to interfere with the proceedings of a panchayat either by stay or otherwise. The proviso to Section 77 which enables a District Magistrate or a Magistrate to cancel an order of conviction or compensation made by a panchayat does not come into operation until after the conviction has been recorded.

u/s 435, Criminal P.C. a Sub-divisional Magistrate has power to call for the record of an inferior criminal Court constituted within his jurisdiction for the purpose of satisfying himself that the proceedings are irregular; but his power is limited to forwarding the record to the District Magistrate. In this case the Sub-divisional Magistrate does not appear to have acted in exercise of the powers conferred upon him by Section 435 and there is, in my opinion, no power conferred upon him enabling him to interfere under the Act itself and, therefore his stay order must be regarded as one passed without jurisdiction.

The last point is that in view of the alleged compromise petition filed on 18th July, the panchayat had no option but to accept the compromise and acquit the accused. There is, however, in the Act no provision similar to the provision of Section 345(6), Criminal P.C., that the composition of an offence shall have the effect of the acquittal of the accused. By Section 74 of the Act it is declared that the panchayat is not bound by laws of procedure other than those prescribed by or under the Act. Section 345(6), therefore, does not apply to a panchayat. Reference however was made to Section 76 of the Act. That section declares that it shall be lawful for a panchayat to decide any case or suit within its jurisdiction in accordance with any compromise agreed to by the parties, This is merely an enabling section and it does not mean that a panchayat is bound to accept a compromise entered into by the parties.

In a case like the present, where one of the parties resiles from the compromise it is clearly a proper case in which the panchayat exercised a wise discretion in not acting on it. There is no other point in this case. The rule is discharged.