SUARSHAN LAL Vs. RAGHUNATH PRARAD AND ORS.

JUDGEMENT

(1.) The opposite parties were prosecuted in a Magistrate's court along with two others under Ss. 147 and 325, I.P.C., read with Sec. 149, I.P.C. The applicant who was the prosecutor, had received injuries which included two grievous injuries. The Magistrate after trying the case found that two of the accused were probably not guilty and that it was not known which of the three remaining accused, who are the opposite parties, caused the grievous hurt, did not consider Sec. 34 at all and acquitted the two accused on the ground of benefit of doubt and convicted the opposite parties under Sec. 323, I.P.C. and sentenced them to a fine. Since there was no evidence as to which of the opposite parties caused grievous injuries and he did not consider Sec. 34 at all, he could not have convicted any of them under Sec. 325, I.P.C. though undoubtedly that offence was committed by one or some of them. There was an appeal by the opposite parties which was disposed of by the Sessions Judge. He upheld the trial court's finding that the opposite parties were guilty. But he considered that they were guilty under Sec. 325, I.P.C., read with Sec. 34, I.P.C. Accordingly, he altered their conviction from one under Sec. 323, I.P.C., to one under Sec. 325, I.P.C. An offence of Sec. 325, I.P.C. must be punished with imprisonment, whether with or without fine. The teamed Sessions Judge, however, could not alter the sentence while altering the conviction; Sec. 423 of the Code of Criminal Procedure debarred his altering the sentence while altering the conviction. If he altered the conviction he was bound to maintain the sentence intact. Therefore he maintained the sentence of fine even though the sentence was illegal under Sec. 325, I.P.C., under which he recorded the conviction. Really he should have referred the matter to this Court for making the sentence legal; this Court had ample power under Sec. 439 of the Code of Criminal Procedure, on finding that the sentence imposed in the case was illegal, to make it legal. Thereupon the applicant filled an application in this Court for enhancement of the sentence.

(2.) The opposite -parties contended that the learned Magistrate had no jurisdiction at all to try them. The offence of Sec. 323 is cognizable by a Panchayati Adalat and Sec. 56 of the Panchayat Raj Act lays down that if at any stage of proceedings in a criminal case pending before a Magistrate it appears that the case is triable by a Panchayati Adalat, he must at once transfer it to that Panchayati Adalat. It was argued that when the learned Magistrate found at the end of the case while writing the judgment that the only offence proved against the opposite -parties was that of Sec. 323, I.P.C., he was obliged by Sec. 56 to transfer the case to a Panchayati Adalat. The words "If at any stage of proceedings in a Criminal case" are wide enough to include the stage of writing or delivering the judgment; See Ram Din v/s. State : A.I.R. 1951 All. 554 Shanker Singh v/s. State, 1952 A.W.R. (H.C.) 194 and Sheo Dayal v/s. State, 1953 A.W.R. (H.C.) 480. The present case, however, is complicated by the facts that the trial before the learned Magistrate was of five persons and for the offences of Ss. 147 and 325 read with 149, I.P.C, and that the learned Magistrate held the opposite -parties guilty under Sec. 323, I.P. C., only because he thought that two of the accused did not take part in the commission of the offence and that consequently Sec. 149 did not apply. Even if Sec. 149 did not apply, Sec. 34 could have applied, and did apply as observed by the learned Sessions Judge. Therefore, the learned Magistrate's opinion that the offence committed by the opposite -parties was punishable only under Sec. 323, I.P.C., was erroneous and on this ground it was contended on behalf of the applicant that the case did not go out of the learned Magistrate's jurisdiction. But what Sec. 56 takes into account is the opinion actually formed by the Magistrate and not whether it is right or wrong. It is for the Magistrate to act under the Sec. and for this he has to rely upon his own opinion. He cannot but take his opinion to be correct. If it is erroneous, he himself would not know that it is erroneous. If a Magistrate erroneously finds that the case is triable by a Panchayati Adalat and yet disposes of it himself instead of transferring it to a Panchayati Adalat, the question arises whether the superior court would be bound to set aside his judgment on the ground of want of jurisdiction or can uphold it on the ground that he had jurisdiction. We think that when the superior court finds that he had jurisdiction, it must uphold the judgment. If in the present case the learned Magistrate had transferred the case to a Panchayati Adalat, this Court could have quashed the order on the ground that he had illegally refused to exercise his jurisdiction to try the case, which being one of Sec. 325 read with 34, I.P.C., was within his jurisdiction, and it follows that when he exercised jurisdiction and disposed of the case, this Court should not interfere. The question is essentially one of jurisdiction; when the learned Magistrate had jurisdiction to try the case and tried it, his judgment cannot be set aside on the ground of want of jurisdiction merely because he erroneously found absence of facts conferring jurisdiction upon him. He cannot divest himself of the jurisdiction which the law vests in him by giving an erroneous finding about the absence of facts on which his jurisdiction depends. The erroneous finding is not conclusive and can be revised by this Court in an appropriate proceeding. In Shea Dayal v/s. State, 1953 A.W.R. (H.C.) 480 (supra) and Ram Nath v/s. Manna, 1954 A.W.R. (H.C.) 350 it was rightly found by the Magistrate that the offence made out against the accused was that of Sec. 323, I.P.C., only because though previous hurt was caused it was not known by which of the accused and Sec. 34 did not apply. Therefore, those cases had to be transferred to a Panchayati Adalat. In the case of Ram Nath the Magistrate had transferred it to a Panchayati Adalat and this Court refused to interfere with his order because it agreed that Sec. 34 did not apply. In Shankar Singh's case five men were prosecuted before a Magistrate under Ss. 147 and 323 read with 149, I.P.C., the Magistrate found that four of them did not take part in the crime and convicted the fifth accused under Sec. 323, I.P.C., and it was held by a Bench of this Court that he ought to have transferred the case to a Panchayati Adalat. There it was rightly found by this Court that the offence made out against the accused was of Sec. 323, I.P.C., only; that case also is distinguishable from the present case.

(3.) The present case differs from the cases referred to above in another important respect and it is this that in the present case the learned Magistrate found the opposite -parties not guilty under Sec. 325, I.P.C., only on account of his finding that the other two accused did not participate in the crime at all. Before he could find the opposite -parties guilty under Sec. 323, I.P.C., only he had to find the two accused not guilty at all. So it was contended on behalf of the applicant that he was not required by Sec. 56 to transfer the case to a Panchayati Adalat; so long as he did not deliver judgment acquitting the two accused he could not hold the opposite -parties to be guilty only under Sec. 323, I.P.C., and after having tried part of the case he could not transfer either the whole or the remainder to a Panchayati Adalat. The argument has appearance of plausibility and is said to be supported by Ram Bishal v/s. State, 1951 A.W.R. (H.C.) 147 laying down that if a part of a case is not cognizable by a Panchayati Adalat, the whole is excluded from its jurisdiction, and Chatter Singh v/s. The State, 1953 A.W.R. (H.C.) 338 laying down that the words "a criminal case" in Sec. 55 mean the entire case and not a case against any particular accused only and that the Magistrate is not bound by any law to separate the case of the accused whom he can try from the case against the other accused who can be tried by a Panchayati Adalat and transfer the case against them to a Panchayati Adalat. When it is laid down that if a part of a case is not within the jurisdiction of a Panchayati Adalat the whole is excluded from it's jurisdiction, it is true, but it does not follow that the case cannot be split up into two cases one of which may be retained by the Magistrate on his file and the other may be transferred to a Panchayati Adalat. He cannot transfer the whole case to a Panchayati Adalat; if he does not split it up into two cases, he must retain the whole on his file. It is also true that there is no provision in the Panchayat Raj Act expressly making it obligatory upon a Magistrate to split up a case into two cases, one triable by himself and the other by a Panchayati Adalat. But every Magistrate has power to split up a case; If A and B are tried together for one offence, he can split up the case into two cases, one against each accused. Or if A is tried for two offences, he can split it into two cases one in respect of each offence. If the law requires that he must transfer a case which is triable by a Panchayati Adalat to a Panchayati Adalat, it means that if he can do this only by splitting up a case, he must split it up. In the present case the learned Magistrate found at the time of writing or delivering the judgment that the two accused did not participate in the crime and that the opposite -parties were guilty under Sec. 323, I.P.C. It could, therefore, be said to be a case under Sec. 323 within the meaning of Sec. 56 and outside his jurisdiction. The false implication of the two accused could not possibly confer jurisdiction upon him to try the whole case, nor did it prevent its being a case triable by a Panchayati Adalat. The jurisdiction of a Panchayati Adalat depends upon the nature of an offence but not upon the number of persons prosecuted. If A alone is guilty under Sec. 323, I.P.C., but a complaint is filed against him and also B, who is innocent, it is the Panchayati Adalat that has jurisdiction over the whole case. Therefore, the learned Magistrate did not obtain jurisdiction, and the Panchayati Adalat was not invested of its jurisdiction, over the opposite -parties merely because the two accused were implicated along with them. But the learned Magistrate could not transfer the entire case to a Panchayati Adalat; the Panchayati Adalat would not have jurisdiction unless the two accused were found not guilty and it was found that Sec. 149 did not govern the offence committed by the opposite -parties. The learned Magistrate could not find the two accused not guilty and yet order them to be tried by a Panchayati Adalat. It would be absurd for him to order trial of persons whom he himself finds to be innocent. The position, therefore, was that if he did not come to any decision about their guilt, the Panchayati Adalat would have no jurisdiction to try the case or any part of it, and if he found that they were not guilty, he could not transfer the entire case to the Panchayati Adalat for trial. . The only manner in which he could comply with the law was to split up the case into two cases, one against the two accused and try it himself and the other against the opposite -parties and transfer it for trial to a Panchayati Adalat. There could not possibly be any objection to his transferring a part of the case after formally separating it from the rest. It is correct that Sec. 56 applies only before the judgment is pronounced as observed in Gokaran v/s. The State, 1952 A.L.J. 621 and that after the delivery of judgment there can be no transfer of the case to a Panchayati Adalat. Once the judgment is pronounced, the case is at an end and there remains nothing which may be transferred. But pronouncing a judgment is entirely different from forming an opinion about the guilty or innocence of an accused or about the applicability of the law regarding vicarious liability. A court can form an opinion on these matters without pronouncing a judgment. Sec. 56 itself contemplates that a Magistrate can form an opinion about the precise nature of the offence committed by the accused before he pronounces a judgment against him. In the case of Gokaran one of the accused in a case tried before a Magistrate was said to be a previous convict on account of which he could not be tried before a Panchayati Adalat. The Magistrate at the end of the trial found that he was not proved to be a previous convict and pronounced the judgment in the whole, case instead of transferring it to a Panchayati Adalat (on finding that the accused was not a previous convict and consequently the case was triable by a Panchayati Adalat). It was held by this Court that the Magistrate retained jurisdiction to dispose of the case, the argument being that the Magistrate had first to deliver judgment to the effect that the accused was not proved to be a previous convict before the case could be said to be triable by a Panchayati Adalat and that once the judgment was pronounced there could not arise any question of transfer. With great respect to the learned Judge we do not think that it was correct to say that unless the Magistrate pronounced judgment to the effect that the accused was not proved to be a previous convict, he could not hold the case to be one triable by a Panchayati Adalat. The fact is that as soon as he formed the opinion, the case became one triable by a Panchayati Adalat even if no judgment holding that the accused was not a previous convict was pronounced. Whether a case is triable by a Panchayati Adalat or not becomes apparent to a Magistrate as soon as he forms an opinion about its merits; the pronouncing of judgment comes later. Sec. 54 requires him to transfer a case to a Panchayati Adalat as soon as it becomes apparent to him that it is triable by it. In Gokaran's case, as soon as the Magistrate found that the accused was not proved to be a previous convict, the case must have appeared to him to be one triable by a Panchayati Adalat at once.