KISHUN MAHTO Vs. STATE

JUDGEMENT

(1.) This is an application under Article 227 of the Constitution made in the following circumstances. Two persons, Kishun Mahto and Mangal Mahto, had been convicted under Sections 147 and 153, Penal Code and sentenced by the Gram Panchayat of Harsidhi. Being aggrieved by that order, they moved an application before the Subdivisional Magistrate of Motihari under the provisions of Sub-section (1) of Section 73, Bihar Panchayat Raj Act, 1947 (7 of 1948). The learned Subdivisional Magistrate came to the conclusion that the offences committed by the petitioners do not come within the purview of either Section 143 or Section 147 or Section 153, Penal Code. He, therefore, by his order dated 5-3-1953-to use his own words-modified the conviction and the sentence by recording a conviction of the petitioners under Section 352, Penal Code, and passing a lighter sentence.

(2.) Mr. Sanyal, who has appeared in support of this application, contended that the Subdivisions Magistrate had no jurisdiction to modify the order passed by the Gram Panchayat, The jurisdiction which a Subdivisional Magistrate can exercise on an application filed before mm under Sub-section (1) of Section 73, Bihar Panchayat Raj Act, is provided in that Sub-Section. If, therefore, the Sub-divisional Magistrate finds that there has been a miscarriage of justice, or if there is an apprehension of miscarriage of justice, in any case, he can do one of the following three things: (a) cancel the jurisdiction of the bench with regard to the case, or (b) quash any proceedings of the bench at any stage, or (c) cancel any order passed by the bench. Clearly, the Subdivisional Magistrate in the present case before us has not done any of these three things. He has apparently found that there has been a miscarriage of justice, and, having so found, he could well have cancelled the order passed by the Gram Panchayat, leaving it open to the complainant to institute his case afresh in the Court of the Sub-divisional Magistrate as provided by Sub-section (2) of Section 73 of the Act. But this the Sub-divisional Magistrate did not do and proceeded to modify the order passed by the bench of the Gram Panchayat. The order passed by the Sub-divisional Magistrate, in the circumstances, is without Jurisdiction, and must be set aside. The subdivisional Magistrate will now proceed to pass the proper order as provided by Sub-section (1) of Section 73, Panchayat Raj Act.

(3.) In the result, the application is allowed, and the order passed by the Sub-divisional Magistrate is set aside with the direction as given above.