Surma Ram and Others vs Des Raj and Others

V.P. Gupta, J.—The Petitioners have moved this petition Under Article 227 of the Constitution of India with a prayer for setting aside the order dated 30-9-1981 passed by Chief Judicial Magistrate, Hamirpur, by which the appeal of the Petitioner preferred against the order of Gram Panchayat Lambri dated 11-6-1981 was dismissed as time barred.

The facts are that Des Raj complainant (hereinafter the Respondent) filed a complaint against the accused (hereinafter Petitioners) in Gram Panchayat Lambri (hereinafter Panchayat) Under Sections 323/334/352 I.P.C. in January 1981. The Panchayat issued summons to the Petitioners requiring them to appear before the Panchayat on 11-3-1981. Only Parshotam Dass Petitioner appeared before the Panchayat on 11-3-1981. He gave an undertaking that he would produce Kashmir Singh and Surma Ram (Petitioners) on 27-3-1981. On 27-3-1981 all the parties appeared before the Panchayat and their statements were recorded by the Panchayat. The case was adjourned to 11-4-1981. On 11-4-1981 Kashmir Singh (Petitioner) absented himself and ex parte proceedings were ordered against him. Surma Ram and Parshotam Dass (Petitioners) were present and in their presence statements of witnesses of the Respondent were recorded. The case was adjourned to 9-5-1981 for the evidence of the Petitioners. On 9-5-1981 all the Petitioners absented themselves and the case was adjourned to 27-5-1981. Again on 27-5-1981 the Petitioners were not present. Some evidence was recorded in the absence of the Petitioners and the case was adjourned to 11-6-1981. On 11-6-1981 the Petitioners were again not present and ex parte proceedings were ordered against the Petitioners. The Panchayat also decided the complaint on 11-6-1981 by imposing a fine of Rs. 60/- on Parshotam Dass, Rs. 35/- on Kashmir Singh and Rs. 5/- on Surma Ram. They were directed to deposit the fine amount within a period of 30 days.

Aggrieved from this judgment, the Petitioners filed an appeal in the Court of Chief Judicial Magistrate, Hamirpur. This appeal was filed by them on 21-7-1981 after the expiry of the period of limitation and the learned Chief Judicial Magistrate dismissed the appeal on the short ground that the same was barred by limitation.

Dissatisfied "with these judgments, the Petitioners have now filed this petition.

It is contended by the learned Counsel for the Petitioners that the order of the Panchayat is without jurisdiction because the Petitioners have been condemned unheard. She further contends that ex parte proceedings could not be ordered against the Petitioners and all the proceedings are against the principles of natural justice, as well as the Himachal Pradesh Panchayati Raj Act, 1968 (Act No. 19 of 1970) (hereinafter called the Act) and the rules made thereunder.

I have considered the contentions and have also gone through the records. Chapter XV of the Act deals with judicial functions of a Panchayat. A Panchayat can take cognizance of the offences mentioned in Schedule II of the Act and could try and dispose of the present complaint. The complaint could be dismissed if after examining the complainant and taking such evidence, the Panchayat was satisfied that the complaint was frivolous, vexacious or unproved (Section 200 of the Act). If a complaint is not dismissed u/s 200 of the Act, then the summons are issued to the accused persons u/s 225 of the Act. In case the accused fail to appear or cannot be found then the Panchayat has to report the fact to the nearest Magistrate and the Magistrate is to take necessary steps by issuance of warrants etc. against the accused persons to enforce then attendance, before the Panchayat (Section 226 of the Act). After the presence of the accused the Panchayat is to proceed with the case, record the evidence of the parties and thereafter decide the complaint.

An appeal is also provided u/s 229 of the Act against an order of the Panchayat.

u/s 217 of the Act the Panchayat has a power to dismiss a complaint if the complainant fails to appear before the Panchayat on the date fixed for the hearing of the case. The procedure for recording the evidence is also given in Section 222 of the Act.

u/s 237 of the Act the State Government can frame rules and these rules were framed in 1971 and are Himachal Pradesh Gram Panchayat Rules, 1971 (hereinafter called the Rules).

Chapter VI of the Rules deals with the judicial functions of the Gram Panchayat.

Under Rule 87, a Panchayat can entertain an application orally or in writing with respect to a complaint etc. The summons to the parties concerned are to be issued Under Rule 88 of the Rules. Rule 89 deals with the recording of evidence and under this rule while trying a criminal case the Panchayat is first to explain to the accused the charge or the charges made against him and thereafter record prosecution evidence and then examine the accused and his defence. If an accused makes a clear and voluntary confession of the crime then he may be convicted without recording any evidence. In case evidence is recorded then each party is to be allowed time to cross-examine the other party (except the accused and its witnesses) just after examination-in-chief. The Panchayat can either on its own motion or at the request of any party examine any person at any stage of the proceedings before passing the final order and in such a case the party shall be entitled to put questions to the persons so examined.

Before examining any person (except the accused) the Panchayat is to administer the oath or affirmation. Processes, that is, summons, are to be served in the manner provided in rules 106 to 117 of the Rules.

In this case I find that the Panchayat has not followed the procedure as is prescribed under the Act and the Rules. Summons were issued to the Petitioners and they appeared in pursuance to the summons before the Panchayat on 11-3-1981. Thereafter, at an earlier stage or at a later stage all the Petitioners absented themselves, and the Panchayat made an order that ex parte proceedings be taken against them. The Petitioners were accused persons and they could not be proceeded ex-parte. If they had absented themselves at any stage of the proceedings, then the proper course for the Panchayat was to proceed u/s 226 of the Act and report the matter to the nearest Magistrate who could procure the presence of the Petitioners before the Panchayat by issuance of bailable warrants etc. The accused could also be ordered to execute necessary bonds etc. with or without sureties so as to compel them to appear before the Panchayat. In case of failure of the accused to execute bonds etc., the accused can be ordered to be produced in custody and in case of failure to appear before the Panchayat after executing a bond, the Panchayat has to report the matter to the Magistrate concerned and such Magistrate is to proceed under the provisions of Chapter XXXIII of the Code of Criminal Procedure.

The procedure of ordering ex-parte proceedings could not be adopted by the Panchayat. It was a criminal case and the Petitioners could not be convicted in their absence, or before hearing them. Even under the principles of natural justice, the Petitioners could not be convicted in their absence by ordering ex-parte proceedings against them.

In view of the aforesaid discussion, I find that the Panchayat has acted illegally in convicting the Petitioners in their absence by ordering ex parte proceedings against them which has resulted in grave miscarriage and failure of justice.

In ordinary course, the case should be sent back to the Panchayat concerned for a de novo trial, but I find that the complaint was filed for an occurrence of January, 1981 and this petty litigation is pending for the last more than three years. In these circumstances, it will not be in the interest of justice to send back the case for a de novo trial. As such it is ordered that the order of conviction passed against the Petitioners by the Panchayat on 11-6-1981 and the order rejecting the appeal of the Petitioners on 30-9-1981 are set aside. The present petition is accepted. Fine, if deposited, be refunded.