Patna High Court
Lala Thakur vs Hazari Thakur And Ors. on 26 July, 1967
Equivalent citations: 1968(16)BLJR551
JUDGMENT K.K. Dutta, J.
1. This application under Article 227 of the Constitution of India arises out of an order passed by a bench of Sartha (Chandi) Gram Cutchery dated 1-9-1965 convicting and sentencing the petitioner under Sections 426 and 334 of the Indian Penal Code and an order dated 3-11-1965 passed by the full bench of the Gram Cutchery on appeal against the above order. It appears that the present opposite party No. 1, Hazari Thakur, was the complainant in the aforesaid criminal case and the petitioner was sentenced by a bench of the Gram Cutchery to pay a fine of Rs. 25/- under each of the aforesaid Section s and, in default, to undergo rigorous imprisonment for 15 days on each count. The full bench which heard the appeal preferred before it. by the present petitioner upheld the conviction and passed an order sentencing the petitioner to pay a fine of Rs. 25/- on each count and, in default, to undergo imprisonment for 7 days on each count. The order of the full bench, is, however, silent as to whether the imprisonment is to be simple or rigorous; as such, it is presumed to be simple imprisonment.
2. The appeal before the full bench of the Gram Cutchery was preferred by the petitioner on 17-9-1965. Thereafter, the petitioner filed a petition before the Subdivisional Magistrate, Bihar, on 14-10-1965 under Section 73 of the Panchayat Raj Act in which he made a prayer for setting aside his convictions and sentences under Sections 426 and 334 of the Indian Penal Code as per order of the Gram Cutchery dated 1-9-1965. The order sheet of the Subdivisional Magistrate shows that this petition which was numbered as 61 G.P. of 1965 was admitted on the same day and an order was passed calling for a report from the Sarpanch and also the records of the case and staying further proceedings. Subsequently, as per order passed on 5-4-1966, the Subdivisional Magistrate rejected this petition.
3. The first point that was raised before me was that the order of the full bench of the Gram Cutchery dated 3-11-1965 is altogether illegal in view of the fact that further proceedings had been stayed, as per order of the Subdivisional Magistrate dated 14-10-1965 in Case No. 61 G.P. of 1965. On a perusal of the order sheet of the full bench, it transpires that after the filing of the appeal before the full bench on 17-9-1965, there were some adjournments on various grounds and as per order passed on 3-10-1965, when both the parties (the present petitioner as well as opposite party No. 1) were present, the appeal was adjourned to 17-10-1965 for hearing as the Panches and the witnesses had not turned up. On the next two dates, that is, 17-10-1965 and 28-10-1965, the appellant, that is the present petitioner, did not turn up, although the respondent, that is, the present opposite party, had turned up on both the dates and as per order dated 28-10-1965, the appeal was again adjourned to 3-11-1965 for hearing. On this date, the respondent (present opposite party No. 1) as well as the Panches had turned up, but the appellant, that is the present petitioner, did not turn up and thereon the case was heard by the full bench ex parte and, as already mentioned, the convictions under Sections 426 and 334 of the Indian Penal Code were upheld and only some alteration was made in the sentence of imprisonment on default of the payment of the fines. There is nothing in the order sheet of the full bench to show that any intimation regarding the order of the Subdivisional Magistrate dated 14-10-1965 was received by the full bench prior to 3-11-1965 when the appeal was disposed of by this bench, As would appear from the order sheet, referred to above, the petitioner at whose instance the stay order had been passed did not care to turn up before the full bench on any of the dates subsequent to the passing of the stay order of 14-10-1965, namely, on 17-10-1965, 28-10-1965 and 3-11-1965 and it was conceded by the learned advocate for the petitioner that no intimation of the stay order had been communicated to the full bench by the petitioner himself after the passing of the stay order and before the appeal was heard and decided by the full bench. His contention, however, was that the order of the Subdivisional Magistrate being an order staying further proceedings in a pending case, the order came into effect as soon as the same was passed irrespective of the date when the full bench received intimation of that order and, as such, all the proceedings of the full bench subsequent to the passing of the stay order of 14-10-1965 were without jurisdiction and void. In support of this contention, reliance was placed on the Special Bench decision of this Court in Liakat Mian v. Padampal Singhania A.I.R. 1951 Pat. 130. It appears however that there were conflicting views of different High Courts on this point and this has now been set at rest by the decision of the Supreme Court in Mulraj v. Murli Raghunathji Maharaj C.A. No. 1938 of 1966 dated 2nd March 1967. This appeal arose in connection with a stay order whereby the execution proceedings in the original court had been stayed. After referring to the various decisions of the different High Courts including that of our High Court in the aforesaid case (Liakat Mian v. Padampat Singhania) A.I.R. 1951 Pat. 130, the Court held as follows:
But a mere order of stay of execution does not take away the jurisdiction of the Court. All that it does is to prohibit the court from proceedings with the execution further, and the court unless it knows of the order cannot be expected to carry it out. Therefore, till the order comes to the knowledge of the court its jurisdiction to carry on execution is not affected by a stay order which must in the very nature of things be treated to be a prohibitory order directing the executing court which continues to have jurisdiction to stay it and till further orders. It is clear that as soon as a stay order is withdrawn, the executing court is entitled to carry on execution and there is no question of fresh conferment of jurisdiction by the fact that the stay order has been withdrawn. The jurisdiction of the court is there all along. The only effect of the stay order is to prohibit the executing court from proceeding further and that can only take effect when the executing court has knowledge of the order. The executing court may have knowledge of the order on the order being communicated to it by the court passing the stay order or the executing court may be informed of the order by one party or the other with an affidavit in support of the information or in any other way. As soon therefore as the executing Court has come to know of the order either by communication from the court passing the stay order or by an affidavit from one party or the other or in any other way the executing court cannot proceed further and if it does so it acts illegally. There can be no doubt that no action for contempt can be taken against an executing court, if it carries on execution' in ignorance of the order of stay and this shows the necessity of the knowledge of the executing court before its jurisdiction can be affected by the order. In effect, therefore, a stay order is more or less in the same position as an order of injunction with the difference. An order of injunction is generally issued to a party and it is forbidden from doing certain acts. It is well settled that in such a case the party must have knowledge of the injunction order before it could be penalised for disobeying it. Further it is equally well settled that the injunction order not being addressed to the court, if the court proceeds in contravention of the injunction order, the proceedings are not a nullity. In the case of a stay order, as it is addressed to the court and prohibits it from proceeding further, as soon as the court has knowledge of the order it is bound to obey it and if it does not, it acts illegally, and all proceedings taken after the knowledge of the order would be a nullity. That in our opinion is the only difference between an order of injunction to a party and an order of stay to a court. In both cases knowledge of the party concerned or of the court is necessary before the prohibition takes effect.
It is apparent that in view of this decision of the Supreme Court, the stay order as passed by the Subdivisional Magistrate on 14-10-1965 could not operate to invalidate any of the orders as passed by the full bench before the intimation of the order was received by the full bench, either as a result of communication sent to it from the court of the Sub-divisional Magistrate or from any other source. Hence, as in the present case, there is nothing to show that any intimation of this order was received by the full bench prior to the disposal of the appeal by its order dated 3-11-1965, the contention about the order dated 3-11-1965 as passed by the full bench and all other orders passed by it after 14-10-1965 being illegal, without jurisdiction and void, cannot be accepted.
4. It was next urged that the full bench had no right to hear and dispose of the appeal ex parte in absence of the petitioner. This contention does not appear to be at all tenable. As already pointed out, both the parties to the appeal had appeared before the full bench till 3-10-1965 and they were informed of the next date fixed in the case. Thereafter, the appellant, that is the present petitioner, deliberately absented himself in connection with the proceedings before the full bench, apparently under the impression that it was no longer necessary for him to do so in view of the stay order passed by the Subdivisional Magistrate on 14-10-1965. As the appellant, that is the present petitioner, failed to appear before the full bench on the subsequent dates without giving any intimation of the stay order, the full bench in absence of any knowledge about the stay order was fully entitled to proceed with the hearing of the appeal in his absence and, as such, the validity of the ex parte order as passed by the full bench on 3-11-1965 cannot be challenged by the petitioner. There is thus no merit whatsoever in the petitioner's contentions regarding alleged illegality so far as the order of the full bench is concerned.
5. Turning now to the original order as passed by the bench of the Gram Cutchery, it was contended that the entire proceedings of that bench were altogether illegal as the complaint in this case was filed before the Mukhia and not before the Sarpanch and cognizance was taken by the Mukhia and not the Sarpanch. It transpires from the records of the Gram Panchayat that the complaint was filed before the Mukhia on 16-7-1965 and on that very day, the Mukhia passed an order for issue of notice to the accused. Both the parties appeared before the Mukhia on 18-7-1965 and after the attempts made by the Mukhia to effect a compromise between them failed, the case was adjourned by the Mukhia to 5-8-1965 for production of witnesses and documents. In between this date and 5-8-1965, the Mukhia passed an order 27-7-1965 for issue of summons to some witnesses for their appearance on 5-8-1965. Thereafter on 31-7-1965, the Mukhia transferred the case to the Sarpanch for hearing. The order dated 31-7-1965 as passed by the Sarpanch, however, shows that on receipt of the record with the connected papers on that date, the Sarpanch himself examined the complaint petition and found that a case under Sections 426 and 334 of the Indian Penal Code, which was triable by the Gram Cutchery, had been made out and as he found that 5-8-1965 was the date previously fixed by the Mukhia for production of witnesses, he approved of the same date. It would thus appear that although the complaint petition was wrongly presented before the Mukhia and he had wrongly entertained the same and taken some actions in connection therewith, as per orders dated 16/7, 18/7 and 27/7, these illegalities could not affect the subsequent proceedings as the Sarpanch himself subsequently took cognizance of the case on 31-7-1965 when the record was received by him, as shown by the fact that he himself went through the complaint petition and held the case to be triable by the Gram Cutchery in view of the allegations contained therein. I am, therefore, quite unable to accept about the entire proceedings being illegal and without jurisdiction merely because of the fact that the Mukhia had at first taken cognizance of the case and had passed certain orders in that connection.
6. It was next contended that the bench of the Gram Cutchery having failed to make any attempt to effect a compromise between the parties, the proceedings of the bench relating to the trial and the order of conviction as passed are altogether void. In view of the provisions of Sections 58 and 59 of the Bihar Panchayat Raj Act, it is quite apparent that before a bench takes up the trial of a case, it has got to endeavour to bring about an amicable settlement between the parties and for that purpose the bench is required to investigate the case and all matters affecting the parties thereof. The orders as passed by the Mukhia no doubt show that an attempt was made by the Mukhia to make a settlement between the parties before he transferred the case to the Sarpanch, but the Mukhia having no jurisdiction in this matter, the attempts of compromise made by him are irrelevant in connection with the point under consideration. On looking to the orders as passed by the Sarpanch and the bench after the Sarpanch took cognizance of the case on 31-7-1965, it appears, that on 5-8-1965 the accused, that is the present petitioner did not turn up and the case was adjourned to 13-8-1965 on which date also the parties failed to turn up. As both of them turned up thereafter on 15-8-1965, the matter was taken up on that date and on this date, the bench was constituted by nomination of the respective Pan dies by the parties and two Panches by the Sarpanch and the case was adjourned to 28-8-1965 with the order for issue of notice to the Panches. The order sheet dated 28-8-1965 is signed by the Sarpanch as well as Kamla Singh, who was nominated as a Panch by the complainant and Pairu Manojhi who was nominated as a Panch by the Sarpanch., and on this date attempts were made to effect a compromise between the parties, but the same failed and the case was adjourned to 30-8-1965 as the other Panches including Punch nominated by the petitioner, had not turned up. The order dated 30-8-65 shows that on this date, witnesses were examined and documents were produced and parties were again directed to appear on 1-9-1965 and on that date, the judgment of the Gram Cutchery was delivered. It would thus appear that prior to the hearing of the case, attempts were made on 28-8-1965 for effecting a compromise between the parties, but on this date only three of the Punches including the Sarpanch had attended the proceedings. Now although according to Sub-section 2 of Section 57, three Punches constitute a quorum for the purpose of hearing and determining a case by the Gram Cutchery, these three Panches, according; to the sub-section itself, must include the Sarpanch as well as the two punches named by the respective parties. It would thus appear that no part of the proceedings can be conducted by the bench unless atleast the Sarpanch and the two Panches nominated by the complaint and the accused respectively attend the proceedings. Hence, as the attempts to effect the compromise on 28-8-1965 were made on a day on which only three of the Panches excluding the Panch nominated by Lala Thakur were present, these attempts cannot be said to have been made by a bench as validly constituted. It follows therefore that prior to the hearing of the case, there was no attempt for compromise by a duly constituted bench of the Gram Cutchery and this omission evidently invalidates all the subsequent proceedings of the Bench of the Gram Cutchery.
7. Besides the above vital defect in the proceedings, it further transpires from the order sheet of the Gram Cutchery that the order dated 30-8-1965, which relates to the hearing of the case by recording evidence of the witnesses and tendering of documents is signed not only by 5 Punches including the Sarpanch who constituted the bench but also by Rajeshwar Prasad Singh, Mukhia of the Gram Panchayat. The order dated 1-9-1965 relating to the final decision also is not only signed by 5 Panches constituting the bench but also by Rajeshwar Prasad Singh, Mukhia. I find, however, from the record of the Gram Cutchery that besides the order as embodied in the order sheet of 1-9-1965, a judgment was also delivered as per separate sheets and this judgment is signed by all the 5 Panches including the Sarpanch. The Mukhia has also put his signature at the end in the margin but he purports to have done so not as being a party to the decision but. as witness to the fact that all the proceedings and the judgment had. taken place in his presence. In this connection, it may also be mentioned that the signature of the Mukhia in the order sheet of 1-9-1965 is not at the place where the Sarpanch and the Panches had signed one below the other but at the other margin of the order sheet. These facts would indicate that the Mukhia had signed on the order sheet as well as on the judgment not in his capacity as a member of the bench which heard and disposed of the case but merely as a person in whose presence, the proceedings had taken place. It was, no doubt, undesirable and improper for the Mukhia to sign the order sheet in connection with matters which were to be dealt with solely by the Gram Cutchery of which he was not a member, but as it transpires that in the present case he had done so merely as a witness to the proceedings and not as a party thereto, the proceedings cannot be said to have been vitiated thereby. However, as already held above, the entire proceedings relating to the hearing of the case and the final order as passed by the bench of the Gram Cutchery are vitiated due to the failure to make attempts for a compromise by a duly constituted bench in accordance with the provisions of Sections 58 and 59 of the Bihar Panchayat Raj Act and, as such all the proceedings of the Gram Cutchery subsequent to the constitution of the bench including its final order dated 1-9-1965 have got to be quashed. It would follow that all the proceedings of the full bench also which related to the appeal that arose out of this order as also the final order of the full bench passed on 17-10-1965 have also got to be quashed.
8. In the result, this writ petition is allowed and all the proceedings of the bench of the Gram Cutchery starting with the order dated 28-8-1965 up to the final order and judgment dated 1-9-1965 and all the proceedings of the full bench in connection with the appeal arising out of the order dated 1-9-1965 are hereby quashed. The bench of the Gram Cutchery shall proceed to dispose of the case in accordance with the relevant provisions of the Bihar Panchayat Raj Act.