HARBANS SINGH Vs. SITA DEVI

JUDGEMENT

(1.) This is an application under Articles 226 and 227 of the Constitution praying that an order dated the 8th of September. 1955, passed by the Gram Cutcherry of Kopa Chechaul within the district of Patna convicting the petitioners under Section 323 of the Indian Penal Code and imposing a sentence of fine upon them as also the order passed by the Full Bench of the Gram Cutcherry in appeal dated the 15th October, 1955, dismissing the appeal be quashed.

(2.) The short facts are these : One Sita Devi, the complainant in the case, filed a complaint before the Sub-divisional Magistrate of Dinapore alleging that the petitioners had committed offences under Sections 323 and 456 of the Indian Penal Code. The learned Sub-divisional Magistrate examined the complainant on solemn, affirmation and then sent the complaint to the Gram Cutcherry at Barka Kopa to take cognizance of the offence and to try the case. The result of the trial was that the petitioners were convicted under Section 323 of the Indian Penal Code as already stated. On an appeal having been filed to the Full Bench, the appeal was heard by thirteen panches who constituted the Full Bench. Three of these panches found the petitioners not guilty. Five of them found the petitioners guilty and the remaining five, as appears from the order of the Full Bench, remained neutral. These latter five panches accordingly expressed no opinion in the appeal. It was argued by Mr. Awadhesh Nandan Sahai that the procedure adopted by the Full Bench was entirely erroneous and, in my opinion, this argument is well-founded. Sub-rule (2) oi Rule 59 of the Bihar Gram Cut-cherry Rules, 1949, made under Section 80 of the Bihar Panchayat Raj Act, 1947, is as follows :

(3.) With regard to the original order of the Gram Cutcherry convicting the petitioners under Section 323 of the Indian Penal Code, it was contended that that order also was without jurisdiction and for the following reason. The complaint filed by Sita Devi clearly disclosed an offence under Sections 323 and 456 of the Indian Penal Code. She stated in that complaint that the petitioners had entered into her house by forcibly opening the door. This is one of the ingredients mentioned in the definition of house-breaking in Section 445 of the Indian Penal Code and Section 456 provides punishment for the offence of house-breaking by night, the occurrence in the present case having taken place in the evening. Now Section 456 of the Indian Penal Code is not within the list given in Section 62 of the Bihar Panchayat Raj Act, 1947. Section 62 states that with regard to the offences under the Indian Penal Code mentioned in the list provided in that section a Bench of the Gram Cutcherry shall have concurrent jurisdiction with that of the criminal Court within the local limits of whose jurisdiction the Bench is situate for the trial of those offences. Section 456 of the Indian Penal Code not finding place in that list, clearly the Gram Cutcherry had no concurrent jurisdiction to try an offence provided under Section 456 of the Indian Penal Code The lean- ed Sub-divisional Magistrate could not, therefore, send that complaint in which an oflence under Section 456 of the Indian Penal Code was alleged to have been committed for trial by the Grain Cut-cherry. It was, however, pointed out that when Sita Devi, the complainant, was examined on solemn affirmation she had merely said that the petitioners had entered her room but she described the procedure adopted by the petitioners to effect their entry in her evidence and that was by forcibly opening the door of the room in which she was and she stated that the petitioners had entered into her room by force. The complainant in these circumstances had alleged an offence under Section 456 of the Indian Penal Code to have been committed by the petitioners, which offence was not triable by the Gram Cutcherry. The transfer of that complaint to the Gram Cutcherry for taking cognizance of it by the Gram Cutcherry for trial was, therefore, illegal. The trial held by the Gram Cutcherry was consequently also illegal. Hence the order of the Gram Cut-cherry convicting the petitioners under Section 323 of the Indian Penal Code and imposing a sentence upon them must be quashed.