PIAREY LAL Vs. STATE THROUGH SHIVA BALAK

JUDGEMENT

(1.) This is an application under Article 227 of the Constitution and Sec. 561 -A of the Code of Criminal Procedure wherein the petitioner prays that the order passed by the Panchayati Adalat convicting the applicant under Sec. 379 of the Indian Penal Code and sentencing him to a fine of Rs. 25/ - be set aside. Sheo Balak opposite -party made a report to the police complaining that the applicant had attempted to steal away a lota belonging to the opposite party when he was caught red -handed. A case was registered and it was then entrusted to the Panchayati Adalat as the case was within the cognizance of the Panchayati Adalat. The sarpanch constituted a Panchayat of five persons and started proceedings. After some hearings in the case Mata Prasad and Satrohon, two of the five Panches made an application to the sarpanch to the effect that Sheo Balak had made allegations against them and they would not like to be on the Panchayat. They also mentioned in the application that in case the sarpanch agreed to drop them out they should be informed. No action was taken on this application and the Panchayat went on with the case. Ultimately the applicant was found guilty and was sentenced to a fine of Rs. 25/ - on the 16th August, 1952. The applicant then went in revision to the Sub -Divisional Magistrate but the application for revision was dismissed. He then made the present application under Article 227 of the Constitution and Sec. 561A of the Code of Criminal Procedure.

(2.) The first point which has been pressed on behalf of the applicant is that the Panchayat was not duly constituted as two of the panches had signified to the sarpanch their unwillingness to act on the Panchayat. The Panchayat was constituted on the 28th July, 1951, and there were four or five hearings before the application, by Mata Prasad and Satrohan referred to above, was made No, objection to the constitution of the Panchayat was raised by the applicant or by the complainant. Under Rule 84 -D framed under the Panchayat Raj Act it is open to any party to a case, suit or proceeding before a village Panchayat to make an objection about the personel of a Bench constituted for the hearing of the case but such an objection shall be made before the commencement of the hearings. Admittedly no objection was raised by either party to the personnel or to the constitution of the Bench before the hearing started. The learned Counsel for the applicant has not been able to show any provision of law under which it was open to the panches to resign from the Panchayat. But even if such a course of conduct be deemed to be open to a panch, the application made on the 12th September, by Mata Prasad and Satrohan did not submit to a clear and unequivocal resignation from the Panchayat. All that the application shows is that the two panches were unwilling to act in the Panchayat in view of the allegations made by Sheo Balak against them. They had, however, mentioned in the application that they would await the order of the sarpanch. If no orders were made by the sarpanch they would be deemed to have continued as members of the Panchayat There is thus no force in the contention that the Panchayat was not duly constituted.

(3.) The next point which has been urged on behalf of the applicant is that all the panches were not present at all the proceedings and did not subscribe to the judgment delivered by the panches. Reliance has been placed on a ruling of this Court in Tajjmul v/s. Mohd. Ismail : 1952 A.W.R. (H.C.) 352. in which it was held that Rule 100 framed under the Panchayat Raj Act required the presence of the panches at all stages of the proceedings. Evidently the amendment made to the Panchayat Raj Act by the addition of a new Sec. 77A was not brought to the notice of the learned Judge at the time when the case referred to above was decided. The case was decided on the 12th June, 1952, and the amendment came into effect on the 2nd June and presumably the amendment did not come to the notice of the counsel for parties or the learned Judge at the time when the case was heard. After the addition of Sec. 77 -A to the Panchayat Raj Act it would no longer be open to a party to question the proceedings before the Panchayati Adalat on the ground that one or two of the panches were not present at all the stages of the proceedings. A perusal of Sec. 77 -A shows that it is open to the panches present at the time of the hearing to proceed with the case provided there were at least three panches present and the Chairman was one of them. It has been argued that even though all the panches may not be present at all the hearings, all of them ought to join in delivery of judgment. I am unable to agree with this contention. If one or two of the panches were not present at the hearings it could not be expected that they would join in the delivery of the judgment. The words used in Sec. 77 -A are "If any panches appointed to a Bench constituted under Sec. 49 for the trial of a case, suit or proceeding is absent at any hearing, the remaining panches may, notwithstanding anything contained in this Act, try the case, suit or proceeding provided, however, that at least three panches, including the chairman are present and provided further that at least one of the panches present is able to record evidence and proceedings". Retrospective effect has been given to this amendment. The words "try the case" include delivery of judgment also and if three panches, including the sarpanch, have been present at all the hearings and have signed the judgment, the judgment cannot be assailed on that ground.