NANDO Vs. STATE

JUDGEMENT

(1.) This is an application by Nanda and five others for the exercise of the revisional powers of this Court under Sections 435/439 of the Code of Criminal Procedure read with Article 227 of the Constitution of India. The applicants were tried by the Panchayati Adalat of Birauri for offences punishable under Section 379, I, P. C. They were convicted under that section and each of them was sentenced to a fine of Rs. 50/-. The matter was taken up in revision before the Sub-Divisional Magistrate of Bilgram. The Magistrate refused to interfere. The applicants were therefore driven to the necessity of making the present application.

(2.) The facts and circumstances which have given rise to this application are these. Hari Shanker, Meghraj Chaube and Shambhu Dayal residents of Bilgram held a lease executed by the Court of Wards, Bhagaitapur Estate in district Hardoi, of a part of the low-lying land in village Birauri, This low-lying land gets inundated during the rainy season and water remains collected there for some time after which it becomes fit for cultivation. The applicants were granted a lease by the aforesaid tenants for catching fish from this low lying land under two leases each, executed for a year. While the applicants were catching fish by virtue of their rights granted to them under the first lease Lekhraj Pradhan of Birauri Gramsabha and Babu Sarpanch of Panchayati Adalat, Birauri aided by five others, four of whom namely Brijlal, Daley, Nanhoo and Moti were the panchas of the aforesaid Panchayati Adalat forcibly and unlawfully snatched the fish caught and collected by the applicants. The applicants filed a complaint against them under Section 395, I. P. C., which ultimately ended in their conviction. A subsequent complaint was made by the Gramsabha of Birauri through Lekhraj Pradhan against the applicants on the 14th of November, 19S3, under Section 379, I.P.C., on the allegation that the applicants were guilty of the offence of theft for catching fish from the aforesaid land. This complaint of the opposite party No. 2, namely the Pradhan of Gram Sabha, Birauri, was taken up by the panchayati adalat, Birauri, and the members forming the panchayati adalat were persons different from those who were convicted earlier under Section 395, I.P.C. The panchayati adalat after taking the evidence of the parties and after holding "secret inquiry", as has been stated by them in the judgment, found that the offence under Section 379, I. P. C. was proved.

(3.) The first point which has been raised by the applicants in this Court is that having regard to Section 49 (3) of the U. P, Panchayat Raj Act, 1947, the members forming the panchayati adalat were incompetent to decide this case. Section 49 (3) of the Panchayat Raj Act provides that no panch, Sarpanch or Sahayak Sarpanch shall take part in the trial or inquiry in any cases to which he or any near relation, employer, employee, debtor, creditor or partner of his is a party or in which any of them is personally interested. The words "any of them" in the last part of Section 49 (3) refer to a Panch or Sarpanch only and do not refer to mere relation, employer, employee or partner in business, So far as the rule about a Panch or Sarpanch not taking part in a case when any of them is personally interested is concerned, it is identical with the rule laid down in Section 556 of the Code of Criminal Procedure. It is one of the fundamental principles of the exercise of judicial functions by Courts that they should be impartial and fair, or, in other words, that they should not have any prejudice against any one of the parties. Thus it is that no Judge can try a case in which he is himself interested. The principle does not rest upon any suspicion as to the honesty of the Judge or his capacity for the purposes of adjudication, but in the words of Mahmud, J.: It rests upon a thing higher than the technicalities of law. It rests upon the philosophy that says that human beings are after all human Deings and, with all honour due to the honesty and integrity of Judges, they are not to hear cases in which they are themselves concerned." - Queen Empress v. Pohpi ILR 13 All 171 (FB) (A).