Patna High Court
Ganga Ram vs Bhabichhan Rai And Ors. on 6 March, 1953
Equivalent citations: AIR1953PAT295, AIR 1953 PATNA 295
JUDGMENT Das, J.
1. This is a petition for quashing an order of conviction and a sentence of fine imposed upon the petitioner by a bench of the Gram Gutcherry by an order dated 25-11-1951. The application is for an exercise of the power of superintendence vested in this Court under Article 227 of the Constitution of India. The petitioner was convicted of the offence under Section 323, I.P.C. and sentenced to pay a fine of Rs. 22/-or in default simple imprisonment for two weeks by a bench of the Gram Cutcherry at Haripur Pusa in the district of Darbhanga, constituted under Section 57 of the Bihar Panchayat Raj Act, 1947. There was an appeal to the Full Bench of the Gram Cutcherry under Section 67 of the said Act, which was heard by twelve 'Panches' on 30-6-1952. The 'Panches', with one dissentient member, dismissed the appeal.
2.We have heard learned counsel for the petitioner as also learned counsel for the opposite party, the complainants, on whose complaint the case against the petitioner was instituted. Learned counsel for the petitioner has urged four points in support of the rule. His first point is that the offence as disclosed by the petition of complaint was one under Section 342, I. P. C. and the Grain Cutcherry had no jurisdiction to try that offence. Learned counsel has referred us to the provisions of Section 62 of the Bihar Panchayat Raj Act, 1947. Having perused the petition of complaint, which was placed before us by learned counsel for the petitioner, I am satisfied that the allegations which the opposite party made were substantially allegations of an offence under Section 323, I. 'P. C. Under Section 62 of tho Eihar Panchayat Raj Act, 1947, a bench of the Gram Cut-cherry had jurisdiction to try an offence under Section 323, I. P. C. committed within the local limits of their jurisdiction. The first point urged on behalf of the petitioner must, therefore, be overruled.
3. Secondly, it has been contended that in the appeal, which was preferred to the Full Bench of the Gram Cutcherry, the appellant was not heard and a decision was given without hearing the appellant. When we pointed out to learned counsel for the petitioner that the ordersheet of the Gram Cutcherry dated 30-3-1952, clearly showed that the appellant was duly heard by the twelve 'Panches'1 who decided the appeal., learned counsel was candid enough to concede that he was not in a position to press his second point. I may state here that by mistake the word 'bad!' has been translated as the complainant. The name of the appellant (Petitioner before us) was Ganga Ram Jha and his name was clearly mentioned as the 'badi' (appellant) who was heard by the 'Panches'. The second point mooted by learned counsel for the petitioner probably arose out of the wrong translation made here of the word 'badi'.
4. The third point urged on behalf of tho petitioner is- that the 'Panches', who constituted a bench of the Gram Cutcherry, directed a preliminary enquiry by one Mahendra Thakur, who was not a member of the bench, and in their judgment the 'Panches' had referred to the report of the enquiring officer; and it is contended that the provisions of the Bihar Panchayat Raj Act, 1947, do not contemplate an enquiry by an officer who is not a member of the bench and the decision of the bench is vitiated by reason of the delegation of its power of enquiry to a stranger. Learned counsel has relied on a decision of the Allahabad High Court in -- 'Sant Prasad v. State', AIR 1952 All 785 (A). It is necessary to point out, however, that in the case before us the 'Panches' who constituted the bench of the Gram. Cutcherry did not associate any stranger or non-member either with the final investigation or trial of the case. The relevant sections of the Bihar Panchayat Raj Act, 1947, which have a bearing on this question, are Sections 59 and 60. Section 59, 'inter alia', states that a bench of the Gram Cut-cherry "shall make an enquiry, receive such evidence as it considers necessary and record its judgment and in the event of the members of the bench disagreeing, the decision of the majority shall prevail."
Section 60 states, 'inter alia', that "subject to the provisions of this Act and to any rules or directions that may be made or issued by the Government in this behalf, the procedure to be followed by a bench of the Gram Cutcherry shall be such as it may consider just and convenient and the bench shall not be bound to follow any laws of evidence or procedure other than the procedure prescribed by or under this Act."
There is nothing in the Act which prevents the bench from directing a preliminary enquiry by another officer, provided the bench does not delegate its own power of making the final enquiry and receiving such evidence as it considers necessary, In the Allahabad case on which learned counsel for the petitioner has relied, what happened was that the 'Panches' associated certain other persons with the investigation and trial of the case. It was pointed out that there was no provision in the U. P. Panchayat Raj Act which empowered a Panchayati Adalat to take the help of outsiders in investigating the matters which arose in the cases coming up before the Adalat for determination. It was pointed out that the relevant section in the U. P. Act provided that the Panchayati Adalat itself might make local investigation in the village to which the dispute related. There is a further point of distinction between the Allahabad case and the case before us. In the case before us the bench of the Gram Cutcherry, which decided the case against the petitioner, itself recorded and considered the evidence. The bench did not proceed to found its decision solely on the report of the enquiring officer; nor did the bench base its decision mainly on that report. All that the bench said was that the report of the enquiring officer supported the statements of the complainants and their witnesses, which statements were made before the bench. I do not think that in the circumstances mentioned above the fact that the bench referred to the report of the enquiring officer vitiates the trial or renders the decision of the bench invalid or without jurisdiction.
5. The last point urged by learned counsel for the petitioner is more important and, it must be conceded, involves some difficulty of interpretation. I have already stated that the appeal which the petitioner preferred was heard by twelve 'Panches'. Learned counsel for the petitioner has contended before us that the petitioner's appeal was not heard by the full bench as required by Section 67 of the Act; therefore, the order of conviction should be quashed and a direction should be made that the appeal of the petitioner must now be heard as required by Section 67 of the Act. In order to appreciate the point urged on behalf of the petitioner, it is necessary to read Section 67. Section 67 reads:
"An appeal against any order or decision of a bench of the Gram Cutcherry shall be preferred within a period of thirty days after the date of the passing of such order or decision to the full bench of the Gram Cutcherry consisting of the 'Sarpanch' and all the 'Panches' and shall be heard by it in the prescribed manner. The decision of the Full Bench on any such appeal shall be final."
The point taken before us is that under Section 37 the appeal has to be preferred to the Pull Bench of the Gram Cutcherry consisting of the 'Sarpanch and all the 'Punches' and the appeal shall also be heard by it, namely, the 'Sarpanch' and all the 'Panches'. It is contended that the words 'in the prescribed manner' relate not to the constitution of the Full Bench but to procedural matters only. The State Government have made rules under various clauses of Section 80 (2) of the Bihar Panchayat Raj Act, 1947. Rules 57, 58 and 59 of the said rules are relevant for our purpose.
These rules are:
"57 (1) After a memorandum of appeal which shall be in duplicate has been filed by a party and, the requisite fee has been paid, the 'Sarpanch' shall issue a notice together with a copy of the memorandum of appeal to the opposite party and to all the 'Panches' of the Gram Cutcherry to attend a sitting of the Full Bench at the office of the 'Panchayat' on a date not later than the 15th day from the filing of the appeal.
(2) The exact time of sitting shall also be specified in the notice.
58 (1) Not less than eight 'Panches' shall form the quorum for the purpose of constituting a Full Bench for the purpose of hearing an appeal under these rules.
(2) No appeal shall be heard unless a quorum is present.
59 (1) On the date fixed for hearing, the Full Bench shall peruse the records of the case and shall hear the parties and do any other thing to meet the ends of justice and may uphold, modify or set aside the order passed by the original bench, or pass such order as may be just and convenient in the circumstances of the case.
(2) The decision of the Full Bench shall be according to the opinion of the majority of 'Panches' in session and where the opinion is equally divided, the 'Sarpanch' shall have a casting vote.
(3) The dissenting 'Panches' may deliver a dissentient judgment."
The argument of learned counsel for the petitioner is that Rule 58 in so far as it lays down a quorum for the purpose of constituting a Pull Bench for hearing an appeal under Section 67 of the Act travels beyond and is inconsistent with the terms of Section 67 and is, therefore, 'ultra vires'. He has also contended that Rule 59 (2) in so far as it lays down that the decision of the Full Bench shall be according to the opinion of the majority of 'panches' in session is also 'ultra vires' for the same reason. The point which is now urged before us was considered by a Division Bench of this Court in -- 'Ram Narayan sukul v. Lakhan San', Ori. Cri. Misc. Case No. 7 of 1952, D/- 15-1-1953 (Pat) (B). There also tho point taken was that the appeal was hoard by thirteen 'Panches', though the Full Bench of the Gram Cutcherry consisted of fifteen members. It was pointed out in that decision, that Section 67 dealt with two matters, namely, the forum where the appeal is to be preferred and the forum which has to hear the appeal. The view expressed was that the first part of the section dealt with the forum to which the appeal has to be preferred and the second part dealt with the hearing of the appeal and the expression 'in the prescribed manner' entitled the State Government to make rules and in view of the rules made by the State Government the appeal could be heard by thirteen 'Panches'.
Learned counsel for the petitioner has submitted to us that the argument which he is now urging, namely, that Rules 58 and 59 are inconsistent with Section 67, was not presented to the Division Bench in the manner in which.it is now presented before us; and learned counsel has contended that the decision in -- 'Ori. Cri. Misc. Case No. 7 of 1952 (Pat) (B)', cannot be held to have disposed of the argument which he has now advanced. He has -suggested that wo should not consider ourselves bound by the authority of that decision; and if we are now inclined to differ from that decision, we should refer this case to a larger Bench for consideration of the argument which has now been urged by learned counsel, namely, that Rules 58 and 59 in so far as they lay down a Quorum to constitute the Full Bench and make the decision of the majority of the 'Panches' in session the decision of the Full Bench, travel, beyond the scope of and are inconsistent with the words used in Section 67 of the Bihar Panchayat Raj Act, 1947.
5. The argument of learned counsel for the opposite party is that the decision in -- 'Ori. Cri. Misc. Case No. 7 of 1952 (Pat) (B)', is correct and that the whole of the second part of Section 67 should be read together and, if so read, it authorises the State Government to prescribe a quorum lor the Full Bench of the Gram Cutcherry.
7. I must concede that Section 67 is not very artistically drafted. It consists of three parts: the first, part states in effect that an appeal shall be preferred within a particular time to the Full Bench of the Gram Cutcherry consisting of the 'Sarpanch' and all the 'Panches'; the second part states that the appeal shall be heard by it (the relative pronoun 'it' must mean, I think, the Full Bench) in the prescribed manner; and the third part states that the decision of the Pull Bench on any such appeal shall be final. Learned counsel for the petitioner has laid great emphasis on the words 'by it' occurring in the second part of the section, and he has contended that the section lays down, beyond any ambiguity, that the appeal shall be heard by the Full Bench consisting of the 'Sarpanch' and all the 'Panches'; therefore, it was not open to the rule-making authority to take away by rules what the section itself has laid down. The contrary contention on behalf of the opposite party is that the second part should be read as a whole and the qualifying clause 'in the prescribed manner' should be construed in the setting of all the words used in the second part and so construed, it would include the power to make rules with regard to what should be the quorum of the Full Bench as also matters of procedure in connection with the hearing of an appeal.
8. I must say that the point is not entirely free from difficulty. The expression 'by it' must, I think, mean the Pull Bench, and I am not prepared to treat the expression as a mere surplusage. Tho expression 'in the prescribed manner' must also be given its due weight. The word 'prescribed' is defined in the Act and means prescribed by this Act or rules made thereunder". The difficulty of accepting the interpretation put by learned counsel for the petitioner is that, on that interpretation, the section will become almost unworkable; at least the third part of the section will be completely unworkable. If there is no power to fix the quorum which will constitute the Full Bench, then the appeal must be heard by all the fifteen 'Panches' and the decision must also be the decision of the Full Bench, that is, of the fifteen 'Panches'. Any one 'Panch' can then hold up the hearing or decision of the appeal by mere absence on the day on which the appeal is set down for hearing.
It is well established that unless the words used in the section compel us to do so, an interpretation which leads to an absurdity or to an apparent impracticability in the working of the section should not be adopted. I would, therefore, prefer to give the expression 'in the prescribed manner', occurring in the second part of the section, such amplitude of meaning as to make the section workable. For these reasons, I do not think that we should depart from the interpretation of the section given by another Division Bench of this Court, though the argument advanced on that occasion did not take the shape which it has taken before us. As at present advised, I am inclined to accept as correct the interpretation which was put on Section 67 of the Act by the Bench which decided -- 'Ori. Cri. Misc. Case No. 7 of 1952 (Pat) (BV, I do not think that Rules 58 and 59 are invalid for the reasons given by learned counsel for the petitioner.
9. I must say a few words about another decision of the Allahabad High Court in -- 'Jiwa Ram v. Panchaiti Adalat, Gursena', AIR 1952 All 510 (C), on which learned counsel for the petitioner has strongly relied. That was a decision which turned upon the interpretation of Section 49 of the U. P. Panchayat Raj Act. It is unfortunate that a copy of the U. P. Panchayat Raj Act is not available to us; but the report of the decision shows that Section 49 of the U. P. Panchayat Raj Act lays down that a bench of five 'Panches' has to be constituted to hear a case under the Act; these five 'Panches' are to be selected by the 'Sarpanch' out of a panel of 'Panches1 elected under Section 43 by the Gaon Sabhas in a circle, The case which was the subject-matter of decision in the Allahabad High Court was taken cognizance of by five persons as it should have been under Section 49 of the U. P. Act. But the decision of the case was given by three 'Panches' only.
In support of that decision Rule 87A of the Rules framed under the Act was brought in aid. That rule provided that three 'Panches' of 'Panchayati Adalat' shall constitute the quorum for any Bench. It was pointed out by their Lordships that the rules made under the Act must be consistent with the Act and that Section 49 of the Act clearly laid down that a Bench must consist of five 'Panches'. It was not open to the State Government to fix a quorum which was not consistent with the Act. I have already pointed out that Section 67 of the Bihar Panchayat Raj Act", 1947, does not specifically and beyond any ambiguity lay down that the appeal must also be heard by all the fifteen 'Panches'; it merely lays down that an appeal shall be heard by the Full Bench in the prescribed manner.
In other words, we come back to the same point, namely, whether the expression 'in the prescribed manner', in the context in which it occurs in the second part of Section 67, has such amplitude of meaning as to enable the State Government to lav clown the quorum for the Full Bench. If it does/then Rules 58 and 59 made by the State Government cannot be said to be inconsistent with Section 67. It is to be remembered that the quorum of eight members constitutes for the purpose of Section 67 the Full Bench, and the appeal is heard by the Full Bench when the necessary quorum of eight members hears it. It cannot, therefore, be said, that the appeal is not heard by the Full Bench when it is heard by only eight members and not by the entire body of fifteen members. Their Lordships of the Allahabad High Court themselves pointed out:
"If the Act itself had not provided for the constitution of a bench to hear cases, the constitution of benches could be left to the rule making authority, and in that case a quorum of 'panches' for hearing a case could be fixed under the rules."
Therefore, we come back to where we started, namely, what is the true scope and meaning of Section 67 of the Bihar Panchayat Raj Act, 1947. I have already said that, as at present advised, I am not inclined to depart from the meaning given to the section by a Division Bench of this Court in -- 'Ori. Cri. Misc. Case No. 7 of 1952 (Pat) (B)'.
10. For the reasons given above I would dismiss the present application.
Sinha, J.
11. I agree. I had my doubts about the interpretation of Section 67 of the Bihar Panchayat Raj Act, 1947, but the language used is such that it cannot be said that the interpretation given to that section could not have been given.