Juginder Singh vs Amar Singh

Khanna, J.—This petition, under Article 227 of the Constitution filed by Joginder Singh Petitioner, raises the important question as to whether a District Magistrate in an application u/s 51 of the Punjab Gram Panchayat Act (hereinafter referred to as the Act) can convict a person who has been acquitted by the Gram Panchayat. It arises in the following circumstances:

Amar Singh made a complaint to the Gram Panchayat of village Kakarwal against Joginder Singh Petitioner and his wife, Gnrnam Kaur on the allegation that on the day of Dussehra in 1961, corresponding to 18th October 1961, the aforesaid husband and wife assaulted the complainant after dragging him inside their house and also pulled his beard. Amar Singh examined himself and produced one witness Bachan Singh in support of that allegation. The allegation was denied by Joginder Singh and his wife. The Gram Panchayat found the evidence, produced on behalf of the complainant, to be discrepant and not convincing. It also observed that according to its enquiry the case of the complainant was lalse. Joginder Singh and Gurnam Kaur were, accordingly, acquitted.

Amar Singh filed an application u/s 51 of the Act to the Court of Executive Magistrate, Malerkotla, who was exercising the powers of a District Magistrate. The learned Magistrate was of the view that the version of the complainant was straight forward and that the discrepancies referred to by the Gram Panchayat were not material. He accordingly, set aside the order of the Panchayat and convicted Joginder Singh u/s 323, Indian Penal Code, and sentenced him to pay a fine of Rs. 20/-. Gurnam Kaur was given the benefit of the doubt and was held to have been rightly acquitted by the Panchayat.

In this Court, Mr. Vinayak, learned Counsel for the Petitioner, has made two submissions, It is urged in the first instance that in an application u/s 51 the Magistrate could not convict the Petitioner who had been acquitted by the Gram Panchayat. in the alter-nitive, it is argued that assuming that the Magistrate was vested with that power, the circumstances of the present case did not justify interference with the order of acquittal made by the Panchayat, Section 51 of the Act reads as under:-

51(1) The District Magistrate, if satisfied, that a failure of justice has occurred, may, of his own motion or on an application of the party aggrieved, by order in writing after notice to the accused, or the complainant as the case may be, cancel or modify any order in a judicial proceeding made by a Panchayat or direct the retrial of any criminal case by the same or any other panchayat of competent jurisdiction or by a court of competent jurisdiction subordinate to him.

(2) * * * *

Perusal of the above provision of law goes to show that the District Magistrate is empowered, in case he is satisfied after due notice to the parties that failure of justice has occurred, to cancel or modify an order or to direct the retrial of any criminal case. The question, which arises for determination, is as to whether the words "cancel or modify any order" include the power of converting a finding of acquittal into that of conviction. The word "cancel" conveys the idea of making inoperative, and the dictionary meaning of this word is "to annul or suppress: to abolish or wipe out". According to Aiyer''s Law Lexicon of British India, the word "cancel" means "to blot out onobliterate". Mr. Vinayak urges that though a Magistrate can u/s 51 of the Act set aside or wipe out an order of the Gram Panchayat, he cannot, at the same time, convict the Petitioner and the only power, which the Magistrate can exercise is to direct the retrial of the criminal case it the circumstances warrant such a course. The power of a Magistrate u/s 51 of thfl Act in this respect, it is stated, is analogous to that of a revisional court under the Code of Criminal Procedure.

So far as the word "modify" used in Section 51 of the Act is concerned, it is contended that modification implies an alteration which introduces new elements into the details, but leaves the general purpose and effect of the subject matter intact. Reference in this connection has been made to Aiyer''s Law Lexicon of British India which supports the contention of the learned Counsel. Reference lias also been made to case Imperatrix v. Rama Prema ILR 4 Bom. 239 wherein it was held that the word "modify" cannot be deemed to include the power of enuancing the sentence. The contentions of Mr. Vinayak prime facie appear to be well-founded. In view, however, of the importance of the question and to ensure an authoritative pronouncement on the subject, I am of the view that the matter should be decided by a larger Bench. I, accordingly, direct that the papers may be laid before my Lord the Chief Jastice for reteiring the matter to a larger Bench.

ORDER OF THE DIVISION BENCH

Mehar Singh and Jindra Lal, JJ.

In this petition under Article 227 of the Constitution, Petitioner Joginder Singh, on a complaint by Respondent Amar Singh for simple hurt caused to him by the Petitioner, was acquitted by the Gram Panchayat of village Kakarwal, whereupon Respondent Amar Singh moved the District Magistrate u/s 51 of the Punjab Gram Panchayat Act, 1952 (Punjab Act 4 of 1953), against the order of acquittal of the Petitioner, and the District Magistrate on May 9, 1962, set aside that order and convicted the Petitioner u/s 323 of the Penal Code awarding him a sentence of fine of Rs. 20/-. The Petitioner in this petition urges that the District Magistrate had no power u/s 51 or under any other section of Punjab Act 4 of 1953 to set aside the order of acquittal made in his, favour by the Gram Panchayat and to convict him as he has done.

This case first came up for hearing before Khanna J., who on consideration of Section 51 of Punjab Act 4 of 1963 was disposed to the view that the order of the District Magistrate is without jurisdiction not being within the scope of that section under which all that the District Magistrate can do is, in a proper case, to direct retrial, if he is minded to interfere as has been done in the present case However, the learned Judge has referred the case to a larger Bench because it concerns the powers of the District Magistrate under the particular section of the Act and is a matter that is likely to arise quite fairly often.

The question raised by the Petitioner has to be answered in relation to Section 51 of the Act, Sub-section (1) of which is in these terms-

The District Magistrate, if satisfied, that a failure of justice has occurred, may, on his own motion or on an application of the party aggrieved by order in writing after notice to the accused or the complainant as the case may be, cancel, or modify any order in a judicial proceeding made by a Panchayat, or direct that the retrial of any criminal case by the same or any other Panchayat of competent jurisidction or by a Court of competent jurisdiction subordinate to him.

It is obvious that the District Magistrate under this section can do one of the three things (a) cancel an order, or (b) modify an order, or (c) direct retrial of a criminal case. It is apparent that the word ''cancel'' just means that the District Magistrate obliterates or puts an end to the order made by a Gram Panchayat, and it is equally apparent that when he does that he cannot substitute or make, an alternative order for the order of the Gram Panchayat. In so far as the word ''modify'' ii concerned, again its ordinary and dictionary meaning has to be taken. This word, however, appeared in Section 18(2) of the Code of Criminal Procedure of 1872 whereby a Sessions judge was given power to ''con firm, modify, or annul a sentence passed by an Assistant Sessions Judge. In Imperatrix v. Rama Prema ILR 4 Bom. 239, the learned Judges held that the word ''modify'' in that provision did not include power of enhancing the sentence. In other words, the learned Judges were of the view that while a sentence passed by an Assistant Sessions Judge may be modified by the Sessions Judge by reduction, it was not modifying it when it was enhanced. The ordinary dictionary meaning of the word in the Shorter Oxford Dictionary is ''to limit, restrain; to make Jess severe, rigorous; to tone down; to make a partial change in'', and in Webster the meaning given to the word is - ''to limit; also to mitigate; assuage; to reduce in extent or degree; to moderate; qualify; lower; to change somewhat the form or qualities of; to alter the same''. It is thus evident that the ordinary meaning of this word which has to be applied in the present case with reference to its use in Sub-section (1) of Section 51 of the Act is partial change or alteration in the order of a Gram Panchayat. It is clear that in the case of order of acquittal, a partial change is an impractical proposition, but in the case of an order of conviction it is obviously a practical proposition Neither under the word cancel'' nor the word ''modify'' as used in Sub-section (1) of Section 51 is there a power in the District Magistrate to make order on his own convicting a person who has been acquitted by a Gram Panchayat. All that he can do, when he applies the first word of the Sub-section, is to set aside the order of a Gram Panchayat and when he applies the second word to such an order to change or alter it so as to tone it down or make it less rigorous or severe, but no more. So the approach that Khanna J., was making to the case on consideration of the meanings of the these words is correct, and the order of the District Magistrate in this case is not supported by the provisions of Sub-section (1) of Section 51 of Punjab Act 4 of 1953. It is in substance an order without jurisdiction.

In consequence, the order of the District Magistrate in this case is quashed, with a direction under Article 227 that if, after considering the case, he is of the opinion within the meaning and scope of Sub-section (1) of Section 51 of Act 4 of 1953 that this is a proper-case in which retrial should be had, he may then proceed to make an order for retrial in accordance with that provision.

In spite of service Respondent Amar Singh has not appeared, but on behalf of the State learned Counsel has appeared and he has not been able to support the order of the District Magistrate by any cogent and acceptable argument. In the circumstances, there is no order in regard to costs. The parties present are directed to appear in the Court of the District Magistrate on September 30, 1963.