JAI SINGH Vs. GRAM PANCHAYAT SAKRAH

JUDGEMENT

(1.) This is a petition filed under the provisions of Article 227 of the Constitution of India for setting aside the order dated February 2, 1982 passed by the Chief Judicial Magistrate, Simla.

(2.) The facts giving rise to the filing of the present petition briefly stated are that F.I.R. under sections 379, 447 and 427, I.P.C. was lodged against Jai Singh and Mohan Lal. The case was ultimately tried by the Gram Panchayat, Sakrah. They were convicted by the Gram Panchayat vide order dated June 27, 1980 and sentenced to pay a fine of Rs. 25 each. Both the accused preferred an appeal under section 229 of the Himachal Pradesh Panchayat Raj Act, 1968 (in short "the Act"). The learned Chief Judicial Magistrate, Simla ordered issuance of notices to the respondents and also sent for the record of the Gram Panchayat. When the case came up for hearing before the Chief Judicial Magistrate, Simla on August 17, 1981, he dismissed the appeal by an order which reads : "Present: None for the petitioner. Panchayat record also not requisitioned for want of P.F. It is 4.15 p.m. at this stage. None appears for the petitioner. Shri G.D. Verma, Advocate appears for the respondent. The present petition is, therefore, dismissed for want of prosecution. File to go to record room ........." On August 17, 1981 itself, the petitioner moved an application under Order 41, Rule 19 read with section 151, C.P.C. praying for the restoration of the appeal. This application was dismissed by the learned Chief Judicial Magistrate, Simla on February 2, 1982 on the short ground that the name of the opposite party had not been given in the head note and that no relief could be granted against a person who has not been made a party in the proceedings.

(3.) From the facts narrated above, it is clear that the petitioners -accused were convicted by the Gram Panchayat, Sakrah in criminal proceedings as distinguished from proceedings of civil nature. It is also plain that the petitioners invoked the criminal jurisdiction of the appellate Court while preferring an appeal under the provisions of section 229 of the Act. That is why the order dated August 17, 1981 was made by the Chief Judicial Magistrate, Simla. If so, invoking the provisions of Order 41, Rule 19 read with section 15, C.P.C. for having the order dated August 17, 1981 set aside was totally misconceived. No such application was maintainable. In fact, this has been fairly conceded by Miss Kamlesh Sharma, learned Counsel for the petitioners but her contention is that the present petition has been moved under Article 227 of the Constitution and that this Court has ample powers to undo a manifest wrong which is apparent from the record of the lower Court. This contention of hers has to be upheld.