BINDESHWARI SHARMA Vs. STATE OF BIHAR

JUDGEMENT

(1.) This application under section 482 of the Code of Criminal Procedure (hereinafter called' the Code') has been preferred for quashing the order of cognizance taken by the Subdivisional Judicial Magistrate on 9.10.76. The simple case here is that on 2.1.76 one Sahdeo Sharma instituted a case in Gram Kutchery, Salimpur in the district of Patna against the petitioner Bindeshwari Sharma and some others. The allegation was that his thumb-impression was taken on some Sada paper and he was also robbed of Rs.200/-on 3.1.76 as shown by Annexure '2' Sarpanch examined the complainant on solemn affirmation, but finding the case beyond the jurisdiction of the Gram Kutchery he sent the matter to the Munsif Magistrate (Subdivisional Judicial Magistrate). The complainant thereafter filed a petition before the Subdivisional Judicial Magistrate on 5.1.76 for summoning the accused persons. Perhaps he himself had also brought the Gram Kutchery records to the Court of the Magistrate. The Subdivisional Magistrate recorded an order on that day to say that in view of the fact that the complainant had already been examined in the Gram Kutchery it was not necessary to re-examine him on solemn affirmation. He however, kept the case in his own court for further enquiry. Ultimately on 9.10.76 after completing the enquiry he took cognizance against the accused persons for the offences under sections 347 and 379 of the Indian Penal Code. Against that order this application has been filed.

(2.) It was first contended that the Sarpanch had no jurisdiction to forward the case to the Court of the Munsif Magistrate or the Subdivisional Judicial Magistrate, because under rule 43 of the Bihar Gram Kutchery Rules, 1962 when he found that the case was beyond his jurisdiction he could only dismiss the case. Consequently it was also argued that no fresh complaint was lodged before the Subdivisional Judicial Magistrate and the complainant had not been examined under section 200 of the Code. In support of the petitioner's contention, reliance was placed on the case of Misri Mandal and 23 others v. Nageshwar Singh (1974 B,B.C.J.307). The view in this authority by the Single Judge, B.P. Jha, J. is fully in support of the argument advanced on behalf of the petitioner. On behalf of the State as also the opposite second party reliance has however, been placed on a Division Bench authority of this Court in the case of Jagia Devi v. Santlal Rajak decided along with two other Criminal Miscellangous cases reported in 1977 B.B.C.J.9). The earlier case of Misri Mandal was referred to therein and distinguished. This authority has held that though rule 43(a) forbids the Gram Panchayat to proceed with the case if it is beyond his jurisdiction, it does not forbid him to forward the case to the court of the Magistrate. It has further been observed that the complaint forwarded by the Sarpanch to the Subdivisional Judicial Magistrate with his record is a complaint made to the Subdivisiona Magistrate and therefore, the Sub-divisional Magistrate has jurisdiction to take cognizance on receiving the complaint under section 190 (a) of the Code. This also does away with the necessity of examining the complainant on solemn affirmation as required by section 200 (a) of the Code, because the Sarpanch is a public servant under section 21 (5), Indian Penal Code.

(3.) It is thus, clear that absolutely there is nothing against the order of cognizance and the case is accordingly dismissed.