(1.) The two petitioners, Ramsaroop Dhanuk and America Dhanuk, were being tried in the Gram Cutcherry of Kharthua Gram Panchayat, within police-station Bukhtiarpur, on the complaint filed against them by the Opposite Party Ishwar Sao. The charge against them was that on the night of the 9th of May, 1958, they along with some other persons stealthily entered the room of the complainant and committed theft o a number of articles and the two petitioners were identified among the culprits. Cognizance was taken of the case and they were summoned for trial before the Gram Panchayat. The petitioners thereafter filed an application before the learned Sub-Divisional Magistrate, Barh under Sections 70 and 73 of the Bihar Gram Panchayat Raj Act, challenging the jurisdiction of that Court to try them. They alleged that there was deep-seated enmity between the petitioners and the members of the Gram Panchayat as also that the complainant's case made out an offence under Section 457, Indian Penal Code, which was not triable by the Gram Panchayat Court. The Sub-Divisional Magistrate sent for the records of the case and rejected the prayer for taking the case out of the jurisdiction of the Panchayat Court. The learned Sub-Divisional Magistrate, however, indicated in the order rejecting the prayer that the question of jurisdiction could arise clearly only after the evidence in the case was recorded, but that he was not satisfied that there was any substance in the allegation of enmity contained in the petition. On 1-7-1958, the petitioners again approached the learned Sub-Divisional Magistrate, after some evidence was recorded, for transfer of the case to the Court of a Magistrate, but the learned Sub-Divisional Magistrate called for a report from the Gram Panchayat and perusing the same rejected the petition for a transfer. The petitioners have accordingly moved this Court under Arts. 226 and 227 or the Constitution of India for quashing the trial and directing transfer of the case pending before the Gram Panchayat to a competent Magistrate.
(2.) Learned counsel has pressed the only question now left open to him which is that the facts stated in the petition of complaint disclose an offence under Section 457, Indian Penal Code, which is not triable by the Gram Panchayat Court, and, as such, their trial under Section 380, Indian Penal Code, was beyond jurisdiction. Learned counsel has referred to the case of Kailash Singh v. The State, 1958 BLJR 780, which judgment was delivered by me sitting with U.N.Sinha J. The particular passage on which reliance has been placed by the learned counsel for the petitioners is that the Court trying the case is in seizin of the case on the allegations on behalf of the prosecution. That decision, however, is no authority for the proposition put forward by the learned counsel on behalf of the petitioners. That was a case in which charge was under Section 325, Indian Penal Code, which was tried by the learned Magistrate but he convicted the accused under Section 323, Indian Penal Code. The argument advanced in that case was that the offence under Section 323, Indian Penal Code, being triable by the Gram Cutcherry it was incumbent on the trial Magistrate suo motu to transfer the case to the Court of the Sub-Divisional Magistrate who should have ordered the case to be tried by the Gram Cutcherry. That argument was negatived: The question raised by the learned Counsel in the present petition did not arise for consideration in the above case. The next case relied upon by the learned Counsel was the decision of this Court reported in Shyamlal Jagnani v. State, AIR 1954 Pat 247. That was a case in which the accused were tried under Section 353, Indian Penal Code, by a Magistrate of the Second Class and was acquitted. He was again prosecuted on the same facts by a first class Magistrate for an offence under Clauses (a) and (h) of Section 26 of the Bihar Sales Tax Act. It was urged on behalf of the petitioners that the second trial was barred. The Division Bench of this Court, however, rejected the contention on the ground that the second trial was expressly permissible under Section 403 (4) of the Code of Criminal Procedure as the Magistrate in the previous trial was not competent to try the offences in subsequent trial in view of Section 26 (2) of the Bihar Sales Tax Act. They were distinct offences. The following observation was made in that judgment with regard to this argument:
(3.) This application accordingly fails and is dismissed.