Patna High Court
Pati Kumhar And Ors. vs Ahiv Kumhar on 11 December, 1952
Equivalent citations: AIR1954PAT157, 1953(1)BLJR330
JUDGMENT Imam, J.
1. This is an application purporting to be under Section 439, Criminal P. C. and Article 227 of the Constitution. The petitioners were convicted by the Gram Cutcherry constituted under the Bihar Panchyat Raj Act, 1947 (Bihar Act 7 of 1948). The incident arose as a result of cattle grazing. When the cattle were seized and being taken to the pound, the accused persons came and committed assault and rescued the cattle. The Subdivisional Magistrate purporting to act under Section 73 of the Act declined to interfere with the conviction, but held that the sentence of imprisonment awarded in default of payment of fine by the Gram Cutcherry was illegal as they had no jurisdiction to impose more than one week's imprisonment in default of payment of fine.
2. Three points have been urged in this Court. The first point was that the case having been compromised the Gram Cutcherry acted without jurisdiction in, proceeding with a case, but should have complied with the direction in Section 58 of the Act and given effect to the compromise. The second point was to the effect that the word "cancel" in Section 73(1) (C) of the Act did not empower the Subdivisional Magistrate to partially cancel an order. The third contention was to the effect that the facts stated in the petition of complaint clearly disclosed an offence punishable under Section 392, Penal Code, that is to say, robbery, an offence which the Gram Cutcherry had no jurisdiction to try.
3. As to the first contention, Section 58 of the Act states;
"A bench of the Gram Cutcherry, while hearing a suit or trying a case under the provisions of this Act, other than a case arising out of a non-compoundable offence, shall after giving such notice to the parties & in such manner as it thinks fit, endeavour to bring about an amicable settlement between the parties, and for this purpose the bench shall, in such manner as it thinks fit and without delay, investigate the suit or case and all matters affecting the merits thereof and the right settlement thereof, and in so doing may do all such lawful things as it thinks tit for the purpose of inducing the parties to come to a fair and amicable settlement; and where such a settlement is brought about, the bench shall record the same and give its decision accordingly."
This point apparently had not been taken before the Subdivisional Magistrate or the Gram Cutcherry itself. A certified copy of the petition filed before the Subdivisional Magistrate, however, was shown to us, and according to that petition, at any rate, there was a clear assertion before the Subdivisional Magistrate that there had been a compromise. It seems to me, however, that before the Subdivisional Magistrate the argument was obviously not pressed because there is no reference to it in his order. A plain, question arises as to whether indeed there had been a compromise, such a compromise might have been arrived at by the parties without the intervention of the bench of the Gram Cutcherry. It is inconceivable that if acting in accordance with the provisions of Section 58, the bench of the Gram Cutcherry had performed the duties permitted under that section, the Gram Cutcherry would be ignorant of the fact that through their effort matters had been amicably settled between the parties. Independent of this question, it is a matter for serious consideration as to whether Section 58, in the circumstances of the present case at all applies. It is to be observed that Section 58 specifically states that in a case tried by the Gram Cutchery other than a case arising out of a non-compoundable offence, the Gram Cutcherry shall do the various things enjoined in the section. In the present case, there was an offence complained against the accused for which they had been tried and convicted which was a non-compoundable offence, namely, Section 379, Penal Code. Merely because there was also another section of the Penal Code for which the accused were being tried, which was compoundable, would not make the case against the accused as one arising out of a compoundable offence. In my opinion, the circumstances of the present case do not establish that Section 58 of the Act had any application whatsoever.
4. As to the second contention, the word "cancel" is to be read by itself. It has to be read as found in the section which is as follows : "cancel any order or decree passed by the bench". Where a bench of the Gram Cut-cherry passed an order of imprisonment for one month in default of payment of fine, the Sub-divisional Magistrate could cancel that part of the order, and in fact he did. At best, it can be said that under Section 73, he had no jurisdiction to impose any sentence on his own account in default of payment of fine. But has the Sub-divisional Magistrate really done this? That the bench of the Gram Cutcherry had jurisdiction to impose imprisonment up to one week in default of payment of fine is not doubted. All that the Subdivisional Magistrate did was to legalise the position regarding the sentence of imprisonment in default of payment of fine. In my opinion, what the Subdivisional Magistrate did was not an act which could possibly justify this court in exercising such powers as it possessed under Article 227 of the Constitution.
5. As to the third point, it seems to me that the facts stated in the complaint do not necessarily lead to the conclusion that the offence of robbery was disclosed. The facts stated in the petition merely suggest that while the cattle which had grazed the complainant's field had been seized and were being taken to the pound, the accused seized the cattle and committed acts of assault. Section 390, Penal Code, defines the offence of robbery which is either theft or extortion, and which when done, in certain circumstances, amounts to robbery. Obviously, in the present case, that part of the Penal Code which deals with extortion amounting to robbery does not arise. So far as the question of theft is concerned, the very important words in" the section to the effect "for that end" are commonly lost sight of. It is not in every case where theft has been committed as well as assault, that the transaction becomes robbery. The assault must be found to have been committed for the purpose of committing the theft, or in carrying away or attempting to carry away property obtained by theft. The necessary ingredients to make the allegations of the complainant amount to a case of robbery against the accused are not, in my opinion, disclosed in the petition of complaint. Furthermore it has to be remembered that the offence which the petitioners had committed was rescue of cattle which belonged to them, and for which, under the Cattle Trespass Act, a punishment is provided if the rescue was unlawful. The assault which was committed while rescuing the cattle may well be regarded as committed for the purpose of preventing the complainant from taking the cattle to the pound. I am satisfied that the present case does not establish that the incident complained of amounted to an offence of robbery. It seems to me, therefore, that the bench of Gram Cut-cherry did not act without jurisdiction in trying the accused under Sections 379 and 323, Penal Code.
6. It had been urged that the provisions of Section 439 of the Code of Criminal Procedure gave this Court power of revision against the order of conviction passed by the bench of the Gram Cutcherry. This submission is entirely untenable having regard to the Sub-section (3) of Section 73 of the Act which states:
"Except as aforesaid, and as provided in Section 67, an order or decree passed by a bench of the Gram Cutcherry in any case or suit under this Act shall be final and shall not be open to appeal or revision in any Court."
It seems to me that the statutory provision is so abundantly clear that there is no room for the submission which has been made.
7. I would accordingly dismiss this application.
Misra, J.
8. I agree.