RAMA NAND JHA Vs. KAMLA NAND JHA

JUDGEMENT

(1.) Both these revisions have been filed by Rama Nand Jha, petitioner, against the common order dated 9-8-1983 passed by the learned Chief Judicial Magistrate Katihar in C.II 283 and CII 301 of 1982 dismissing the complaint. They have also prayed for passing an order for an enquiry under Section 398 of the Code of Criminal Procedure. Having heard learned counsel for the parties, both the cases are being disposed of by the common judgment.

(2.) Both the cases have arisen out of a proceeding started by the petitioner - Rama Nand, Jha. Sarpanch of Domaria Gram Panchayat on the basis of a report from Dalpati dated 20-8-1982 to the effect that there was an apprehension of breach of peace with respect to some lands as given in the petition, as the three different persons, were planning to cut the crop from the field. The Sarpanch stopped all the three parties from doing so and he passed an order under Section 64(1) of the Gram Panchayat Raj Act and got a notice served, on 22-8-1982 upon the opposite parties directing them not to cut the paddy. He also deputed the Dalpati to guard the land and he forwarded the report to the Subdivisional Magistrate, Katihar under Section 64(1) of the Gram Panchayat Raj Act. The accused in the case No. CII.282/82 cut the paddy crop on 6-9-1982 from one bigha -land over which the Sarpanch had stopped the party from going over the land. Similarly, the accused in the case No. CII. 30 1/82 cut the paddy on 6-9-1982 from 1 bigha of the land over which the Sarpanch had also stopped the party. The Sarpanch thereafter filed a complaint under sections 188/109 of the Indian Penal Code (for short I.P.C.) and the same was forwarded to the learned Chief Judicial Magistrate for taking cognizance of the offence against the accused. Then again on 14-9-1982 the accused persons named in C.II 30 1/82 cut paddy of the remaining land for which the Sarpanch filed another petition on 18-9-1982 for taking cognizance under section 188 I.P.C. against the said persons. The learned subdivisional Magistrate drew the proceeding No p 1288/82 on the report of the Sarpanch on 26-8-1982. The same was filed vide order sheet dated 22-9-1982 because the statutory time had ended. The court before taking the cognizance u/s. 188 I.P.C. against the accused a persons in both the cases, which arose out of the original report of the Sarpanch considered the question as to whether the requirements of law had been fulfilled. The Magistrate after considering all the matters held that the Sarpanch was not a public servant as such the violation of his order is not punishable under section 188 I.P .C. and so cognizance could riot be taken of the offence.

(3.) Learned counsel for the petitioner has urged that this order of learned Magistrate refusing to take cognizance is bad in law as the Surpanch is a public servant which is made out on the own finding of the court below. As to this contention section 64 of the Bihar Panchayat Raj Act (for short the Act) says that wherever the Sarpanch has reason to believe that a breach of peace or disturbance of the public tranquility is imminent and immediate prevention or speedy remedy is desirable, he may by, a written order stating the material facts of the case and served in the prescribed manner, direct any person to abstain from a certain act or to take action with respect to a certain property in his possession or his management. Sub Clause (2) provides that as soon as the Sarpanch has issued an order under section (1) he may submit the proceedings of the case to the Sub divisional Magistrate who may either confirm the order or discharge the notice after hearing the parties to the dispute if they so desire. Sub-section (23) also provides that this I order shall remain in force for thirty days. Thus it appears that the Sarpanch has got power to pass an order which remains in force for thirty days or unless confirmed or discharged.