Jai Singh and Another vs Gram Panchayat and Another

V.P. Bhatnagar, J.—This is a petition filed under the provisions of Article 227 of the Order Section of India for setting-aside the order dated February 2, 1982 passedby the Magistrate, Shimla.

The facts giving rise to the filing of the present petition briefly stated ace that F.I.R. under Sections 379, 447 and 427 I.P.C. was lodged against Jai Singh and Mohan Lai. The ease was ultimately tried by the Gram Panchayat, Sakrah. They were, convicted by the Gram Panchayat Act & Order dated June 27, 1980 and sentenced to pay a fine of Rs. 25/- each. Both the accused preferred an appeal u/s 229 of the Himachal Pradesh Panchayati Raj Act, 1963 (in short "the Act"). The learned Chief Joaml Magistrate, Shimla ordered issuance of notices to the Respondents and also sent for the record of the Gram Panchayat. When the case came up for hearing before the Chief Judicial Magistrate, Shimla on August 17, ml, he dismissed the appeal by an order which reads:

Present: None for the Petitioner.

Panchayat record also not requisitioned for want of P.F. it is 4.15 P.M. at this stage. None appears for the Petitioner. Shri G.D. Verma, Advocate appears for the Respondent: The present petition is, therefore, dismissed for want of prosecution. File to go to record room...

On August 17, 1981 itself, the Petitioner moved am application mater Order 41, Rule 15 read with Section 15 CPC prefaces for the restoration of the appeal. This application was dismissed by the learned Chief Judicial Magistrate, Shimla on February 2, 1982 on the short ground that the name of the opposite party had not been given in the head note and that no relief could be granted against a person who has not been made a party in the proceedings.

From the facts narrated above, it is clear that the Petitioners -accused were convicted by the Grain Panchayat, Sakrah in criminal proceedings as distinguished from proceedings of, civil nature. It is also plain that the Petitioners invoked the criminal jurisdiction of the appellate court while preferring an appeal under the provisions of Section 229 of the Act. That is why the order dated August 17, 1981 was made by the Chief Judicial Magistrate, Shimla. If so, invoking the provisions of Order 41, Rule.19 read with Section 151 CPC for having the order dated August 17, 1981 set-aside was totally misconceived. No such application was maintainable. In fact, this has been ''airily conceded by Miss Kamlesh Sharma, learned Counsel for the Petitioners but her contention is that the present petition has been moved under Article 227 of the Constitution and that this Court has ample powers to undo a manifest wrong which is apparent from the record of the lower court. This contention of her has to be upheld.

An appeal preferred against the provisions of Section 229 Of the Act-can be dismissed summarily for sufficient reasons. If it is not so dismissed, the parties thereto have to be heard and the record of the Gram Panchayat perused. The appeal then has to be disposed of on merits. Merely because the Appellant fails to put in his appearance would not be a valid ground for the dismissal of a criminal appeal for non-prosecution. Also, it is rag duty cast on the court to procure the record of the Gram Panchayat. NO rules or provisions of any law have been shown tome requiring the Appellant to deposit process-See, before the court can send for the record of the Gram Panchayat. Therefore, the fact that process-fee in this case had not been deposited also could not be a valid ground for dismissing the appeal for non-prosecution.

It may be noticed here that Section 229 of the Act prescribes the forum where a person aggrieved by an order or decree of a bench of the Gram Panchayat may file appeal. No procedure has been laid down for determining the appeal. Therefore, the Judicial Magistrate/Sub-Judge will have to follow the procedure said down in the Code of Criminal Procedure, CPC respectively while determining the appeal. This is notwithstanding the fact that Sub-section (4) of Section 222 of the Act, stipulates that the provisions of Code of Civil Procedure, Indian Evidence Act and Code of Criminal Procedure are not to apply to a suit, case or proceeding before a Grain Panchayat. This bar, however, cannot-be extended to the adjudication, of appeals within the ambit of Section 229 of the Act. Once the Code of Criminal Procedure is held to apply to the determination of the appeal u/s 229 of the Act, the powers, of the appellate court would tee circumscribed in a criminal case by Sections 384 - 386 of the Code of Criminal Procedure. In my above conclusion, I am fortified by the law laid down Shyam Deo Pandey and Ors. v. The State of Bihar. It is well-settled that a criminal appeal cannot be dismissed merely because the parties thereto or their counsel do not appeared for the court. As already stated above, an appeal in suffix circumstances has to be determined on merits after due perusal of the record of the lower court.

In the above view of the matter, the orders dated February 2, 1982 and August 17, 1981 of the learned. Chief Judicial Magistrate Shimla are hereby set-aside The record of this case be sent back to the aforesaid court with a direction that the appeal preferred by the Petitioners u/s 229 of the Act would be taken on the file against its old number and date and decided on merits keeping in view the observations made above; The parties are directed to. Appear before the learned Chief Judicial Magistrate, Shimla on September 26 1989.