MOTILAL YADAV Vs. RAMBILAS YADAV

JUDGEMENT

(1.) The petitioners along with one other person, were charged under Section 379 of the Indian Penal Code for committing theft of bundles of Matar and Massor from the field of informant Rambilas Yadav. The occurence is alleged to have taken place on 6-2-1967. When the trial concluded a petition was filed on behalf of the informant that the case was exclusively triable by a Bench of the Gram Cutcherry. The order sheet of the case showed that the learned Subdivisional Magistrate had taken cognizance in the case without cancelling the jurisdiction of the Gram Cutcherry. Therefore, the learned Munsif Magistrate held that the court had no jurisdiction to proceed with the trial and in absence of a proper trial the petitioners were acquitted of the charges levelled against them. However, the learned Munsif Magistrate observed that the acquittal of the accused persons was not on merit and, therefore, it would not be a bar in initiation of a proceeding by the first informant if he so desires. The opposite party on 17-2-69 filed a complaint on the same set of facts under Section 379 of the Indian Penal Code before the Subdivisional Magistrate who examined him on solemn affirmation and passed the impugned order on 18-2-69 which reads as follows :

(2.) It is not disputed that the loss suffered by the complainant was of Rs. 70.00 and, therefore, the offence was triable by a Gram Cutcherry. It is also not disputed that there was a Gram Cutcherry functioning at the relevant time when the complaint had been filed in the court of the Subdivisional Magistrate. The learned Magistrate has observed that the complainant stated on solemn affirmation that the Gram Panchayat of the area was in the 'Meli' of the accused and, therefore, he cancelled the jurisdiction of the Gram Panchayat.

(3.) It is no doubt that Section 68 of the Bihar Panchayat Raj Act, 1947 (hereinafter referred to as 'the Act') empowers the Magistrate to take cognizance of a case triable by a Gram Cutcherry, provided there is an order by the Magistrate to the effect that the case shall not be tried by the Gram Cutcherry. Before taking cognizance the Magistrate has to pass a contrary order that the case shall not be tried by the Gram Cutcherry. Before taking cognizance the Magistrate has to pass a contrary order that the case shall not be tried by a Bench of the Gram Cutcherry. Section 68(1) of the Act states that no court shall take cognizance of any case or suit which is cognizable under the Act by a Bench of the Gram Cutcherry, unless an order to the contrary has been passed by the Subdivisional Magistrate or the Munsif concerned under the previsions of the Act or any other law for the time being in force. The Magistrate has to apply his judicial discretion and it will not be a mere executive order. In the case of Balden Singh and Ors. v. The State of Bihar and Ors. , S.K. Das, J. while dealing with the question regarding Constitutional validity of Section 62 of the Act has observed as follows: