Mahadeo Chaudhary vs The State

Anwar Ahmad, J.—This application has come on reference by Shambhu Prasad Singh, J. It was contended by Mr. Parmeshwar Prasad .Sinha, counsel for the petitioner, that the conviction and sentence of the petitioner u/s 323 of the Penal Code were without jurisdiction, as there was a Gram Cutcherry functioning in the village on the date of occurrence. learned Counsel for the State, on the other hand, contended that the petition of complaint also disclosed an offence u/s 353 of the Penal Code which was not triable by a Gram Cutcherry, and also that the value of the registers taken away by the petitioner must be held to be above Rs, 100, and on that account also the Gram Cutcherry could not have tried the case. In the opinion of the learned Single Judge, there appeared to be some conflict between two Single Judge decisions of this Court, namely, the cases of Jagdish Yadav v. State of Bihar, 1960 BLJR'' 200 and Prayag Pasi and Another Vs. The State, , and hence this case was referred to a Division Bench for an authoritative decision. The other point on which this application has been referred to is that in the absence of any evidence on the point (which is not on the record of the present case) whether a presumption can be raised that the value of the Bujharat registers was Rs. 100 or more.

The case for the prosecution was that on 29-3-1962 the informant Daya-kant Jha, Karamchari, was doing Bujharat and rent collection work in village Maujaha. At about 6 p.m. while he was returning through ghairmazrua am road to his cutcherry in the village located in the da-waza of Kainal Mandal (P.W, 1) he noticed that one Tunai Chaudhary had constructed a house by encroaching upon the road. The informant asked him to produce documents at the cutcherry in support of his title to the land, failing which necessary action would be taken against him and proceeded towards his cutcherry. The petitioner intervened in the matter and challenged the authority of the Karamchari. This led to an altercation between them, in course of which the petitioner abused the Karamchari (informant) and chased him with a spade to assault him- The informant, in order to save his life, ran away from there along with the Government papers; but the petitioner followed him up of the cutcherry, caught hold of him by the neck from behind, assaulted him with fist''s arid slaps and snatched his Field Bujharat registers�A, B, C, D and E. He also destroyed some pages of those registers and went away with the same.

The Sub-Divisional Magistrate took cognizance of the offence Under Sections 323 - and 379 and transferred the case to the learned Magistrate who convicted and sentenced the petitioner as aforesaid. On appeal, the convictions and sentences have been upheld. Hence this application in revision.

A plain reading of Sections 62 and 68 of the Bihar Panchayat Raj Act (hereinafter referred to as the Act) are exclusively triable by a Bench of the Gram Cutcherry, unless an order to the contrary has been passed by the Sub-Divisional Magistrate or the Munsif concerned. In case no such order, as contemplated by Section 68 is passed, the trial of offences falling u/s 62 by Courts established under the Code of Criminal Procedure must be held to be without jurisdiction (vide Baldeo Singh and Others Vs. The State of Bihar and Others, and a Bench decision of this Court in Bimal Singh v. State of Bihar 1965 BLJR 661.

So far as the question whether the forum of the trial depends on the allegations made in the petition of complaint or upon the cognizance taken by the Sub-Divisional Magistrate, it seems to me that the allegations made in the petition of complaint determine the same; that is to say, if a petition of complaint discloses offences falling tinder Section 62 of the Act as well as other offences which are not enumerated therein, the case has to be tried by the Courts established under the Code of Criminal Procedure. In such a case, even if the Sub-Divisional Magistrate takes cognizance only of an offence or offences which are enumerated u/s 62 of the Act, a Bench of Gram Cutcherry cannot try the same.

In Harbans Singh and Others Vs. Sita Devi and Others, , which is a Bench deci: sion. the petition of complaint disclosed offences Under Sections 323 and 456. The complaint was sent by the Sub-Divisional Magistrate to the Gram Cutcherry to take cognizance of the offence and try the case. The Gram Cutcherry convicted the petitioner only u/s 323. The conviction imposed upon the petitioner by it was quashed by this Court on the ground that the petition of complaint also disclosed an offence u/s 456�an offence which was not one of those enumerated u/s 62 of the Act.

In Dhani Sah v. Suchan Sah 1969 BLJR 627 it was laid down by another Division Bench that on the facts stated in the complaint it is the duty of the Gram Cutcherry to see whether it will have jurisdiction to try the case u/s 62 of the Act. If it comes to the conclusion that on these allegations it will have no jurisdiction, it must refuse to take cognizance of the case and leave the complainant to go and file his complaint petition before the Sub-Divisional Magistrate. In that case, the conviction and sentence of the petitioner were quashed by this Court on the ground that the petition of complaint also disclosed an offence u/s 324 of the Penal Code which was not triable by a Court of Gram Cutcherry.

8, In Kaineshwar Singh v. Bansropan Choudhry, 1961 BLJR 65 it was laid down by Kanhaiya Singh, J., that where the complaint petition disclosed offences u/s 323 (falling u/s 62 of the Act) and Section 506 of the Penal Code, the Gram Panchayat could not minimise the offences and try the petitioner for a lesser offence. The trial was, therefore, held to be void ab initio and the conviction of the petitioner wholly illegal.

The decisions referred to above make it clear that the forum of the trial depends upon the allegations made in the petition of complaint and not on the cognizance being taken by the Sub-Divisional Magistrate under the Sections enumerated in Section 62 of the Act unless an order u/s 68 is passed.

It has now to be seen as to whether the petition of complaint in the present case discloses an offence u/s 353 also, as has been contended on behalf of the State. It has not been brought to our notice that the Karamchari was authorised to check illegal encroachments made by the public on a ghair mazarua am road. But even if that be so, on the complaint petition itself, the Karamchari was not discharging his duty as a public servant at the time the Bujharat registers were snatched away from him. In order to find out as to whether an offence u/s 353 is made out it must be alleged that the public servant was assaulted in execution of his duty so that such assault was committed on the public servant with intent to deter him from discharging his duty. It has not been stated in the petition of complaint that the Bujharat registers were snatched away from the petitioner at the time when he was discharging his duty as a public servant. The mere fact that the registers were snatched away from the Karamchari will not amount to an offence u/s 353 (vide Gulabi Mahto and Others Vs. Emperor, . As no offence u/s 353 was made out on the allegations made in the petition of complaint, offences Under Sections 323 and 379 disclosed in the petition of complaint were exclusively triable by a Bench of Gram Cutcherry. The trial and conviction of the petitioner by the learned Magistrate must be held to be without jurisdiction. I am also of the view that if the petition of complaint is silent as to the value of the stolen articles, it is not open to the Court to raise any presumption as to whether the value of these articles is more than Rs, 100. If no valuation of the stolen articles is given, ordinarily the case will be triable by a Bench of the Gram Cutcherry.

The result, therefore, is that the trial of the petitioner Under Sections 323 and 379 of the Penal Code by the learned Magistrate was illegal and without jurisdiction and has got to be set aside. The application succeeds and the convictions and sentences passed on the petitioner are hereby set aside.

P.K. Banerji, J.

I agree.