SHEONARAIN PATHAK Vs. LACHMI NARAIN PATHAK

JUDGEMENT

(1.) This is an application under Article 227 of the Constitution. It appears that the petitioners were convicted by a Gram Cutcherry constituted under the Bihar Panchayat Raj Act, 1947 (Bihar Act 7 of 1948). The conviction purported to be under the Cattle Trespass Act. The Sub-divisional Magistrate, however, purporting to act under Section 73 of the Act set aside the order of conviction and remanded to the Gram Cutcherry the case for retrial.

(2.) It was contended on behalf of the petitioners that if the Subdivisional Magistrate purported to set aside the order of the Gram Cutcherry convicting the petitioners under Section 73 (1) of the Act, then he had no jurisdiction to send the case back to the Gram Cutcherry for retrial, because under Sub-section (2) where a Subdivisional Magistrate makes an order under Sub-section (1) the complainant may institute a case afresh in the Court of the Subdivisional Magistrate. It is best at this stage to quote Sub-sections (1) and (2) of Section 73 of the Act.

(3.) The question which now arises is as to what are the powers of this Court in rectifying an order made by the Subdivisional Magistrate which is entirely illegal having regard to the provisions of Section 73 (2). I must regard the order of retrial by the Gram Cutcherry made by the Subdivisional Magistrate as being an order without jurisdiction and such being the position, I am satisfied that under the powers of superintendence under Article 227 of the Constitution this Court can intervene. The power of superintendence of this Court would be meaningless if it did not carry with it the jurisdiction to set aside an order of a Court or Tribunal which had passed the order without jurisdiction. I would accordingly allow the application and set aside that part of the order of the Subdivisional Magistrate whereby he ordered the case to be tried by the Gram Cutcherry. The order of conviction having been set aside by the Subdivisional Magistrate, the only course which the complainant in the case can take is that indicated in Sub-section (2) of Section 73 of the Act.