O.P. Gupta, J.
1. A complaint was filed by Gopal Prasad before the Nyaya Panchayat, Kolari in the district of Bharatpur against the petitioners Bhopat, Roshan and Pothi in respect of offences under Section 447 and 506 I.P.C. A Bench of the Nyaya Panchayat consisting of three Panchas examined the complainant and his witness Jiwa Ram and having felt satisfied that the complaint was not frivolous, vexatious or untrue, issued summons to the three petitioners directing them to appear before the Bench of the Nyaya Panchayat on September 7, 1969. On the last mentioned date, the petitioners Bhopat and Roshan were present. but Pothi petitioner was absent. The complainant examined four witnesses including himself in support of the complaint and thereafter the statements of two accused Roshan and Bhopat, who were presents were recorded by the Nyaya Panchayat. The Bench of the Nyaya Panchayat came to the conclusion that the offences under Sections 447 and 506 I.P.C. were fully established by the evidence on record and then sentenced each one of the three accused petitioners to pay a fine of Rs. 50/- each. The three petitioners preferred a revision petition against the aforesaid order of the Nyaya Panchayat before the Munsif Magistrate Dholpur who after hearing the learned Counsel for the parties dismissed the revision petition by his order dated April 22, 1971.
2. In the present writ petition, the petitioners have challenged the order passed by the Nyaya Panchayat as well as the order passed by the Munisif Magistrate, while dismissing the revision petition preferred by the them before him. The main contention advanced by learned Counsel for the petitioners is that although the two petitioner Bhopat and Roshan were present before the Bench of the Nyaya Panchayat on September 7, 1969, yet no hearing took place on that day and the petitioners were informed that the hearing of the matter was adjourned to September 21, 1969. Thus according to the petitioners, there was denial of an opportunity of hearing in the matter and thus there was a breach of the provisions of Section 48 of the Rajasthan Panchayat Act, 1953 (hereinafter referred to as 'the Act') and of the provisions of Rule 144 of the Rajasthan Panchayat and Nyaya Panchayat General Rules 1959 (hereinafter referred to as 'the Act'). It was also argued that neither the petitioners were allowed any opportunity to cross-examine the witnesses produced on behalf of the complainant nor they were afforded an opportunity, to examine their evidence in defence. The record of the proceedings of the Nyaya Panchayat, Kolari in case No. 1 of 1969 was called by this Court and I have perused the same. It appears from an examination of the aforesaid record that summon were duly served on all the three Petitioners and from the order sheet dated September 7, 1969 it is clear that two of the petitioners, Bhopat and Roshan were present while Pothi petitioner was absent on that date. It also appears from the perusal of the afore said record that the witnesses produced by the complainant were examined in the presence of the aforesaid two accused persons, and thereafter the statements of both the accused, who were present on that date, namely, Bhopat and Roshan were recorded. Thus, the case of the petitioners that the statements of the witnesses of the complaint were not recorded in the Nyaya Panchayat appears to be false. The order sheet dated September 7(sic) also reveals that the two accused persons who were present refused to examine any evidence in defence. It was therefore not necessary for the Nyaya Panchayat to adjourn the hearing of the case when the petitioners, who were present did not desire to examine any defence evidence in the case for they sought any adjournment for that purpose. So far as the accused petitioners Bhopat and Roshan are concerned, I do not and that either the provisions of the Act on of the Rules were violated in any manner nor there appears to be any infringement of them principles of natural justice. It is also apparent from the order passed by the Munsif Magistrate that the petitioners did not alleges any violation of the provisions of the Act or the Rules before him, nor it was argued before him that the petitioners were not afforded an opportunity of hearing or off cross-examining the witnesses produced by the complainant or of examining their evidence in defence by the Nyaya Panchyat. Thus the contention of the learned Counsel for the petitioners regarding the violation of the provisions of the Act and the Rules and absence of a proper hearing by the Nyaya Panchayat in the case cannot be accepted, so far as petitioners Roshan and Bhopat are concerned.
3. learned Counsel then submitted that Thakur Prasad brother of the complainant Gopal Prasad was the Chairman of the Nyaya Panchayat, Kolari and as such also the proceeding in the case before the Nyaya Panchayat were vitiated. This argument also deserves to be repelled, because Thakur Prasad might have been the Chairman of the Nyaya Panchayat, but he was not a member of the Bench which heard and decided the case, instituted on the complaint of Gopal Prasad. Section 27-D of the Act provides for the constitution of a Bench of the Nyaya Panchayat consisting of three members thereof for hearing and disposal of the suits and cases coming up before such Nyaya Panchayat. Such Bench may include the Chairman of the Nyaya Panchayat or he may be excluded from a particular Bench. Sub-section (2) of Section 25-F provides that no member of a Nyaya Panchayat who is a party to or is personally interested in any suit or case shall hear or dispose of such suit or case. Sub-section (3) of Section 27-F lays down that a party in a suit or case shall be entitled to object, at the earliest opportunity before the hearing of the matter, to not more than one of the members, without assigning any reason for his objection and if such an objection is raised then such member shall abstain from the sittings of the Nyaya Panchayat during the hearing of the suit or case. In the present case, the Bench of the Nyaya Panchayat which was constituted to hear the case instituted upon the complaint of Gopal Prasad consisted of three members Donger Singh, Vediram and Shyamlal. Thakur Prasad, brother of Gopal Prasad might have been the Chairman of the Nyaya Panchayat, but as he was not a member of the Bench which heard and decided the case, nor he was associated in any manner with the hearing and the decision of the matter by the Nyaya Panchayat, it is difficult to understand as to how the proceedings or the order of the Nyaya Panchayat was vitiated. It is also note worthy that the petitioners did not raise any objection to the hearing of the matter by any of the members of the Bench of the Nyaya Panchayat constituted to hear the case, which they were entitled to do under sub-Section (3) of Section 27-F. The three Nyaya Panchas, who heard and disposed of the matter, appear to be independent persons as nothing has been alleged in the petition against any one of them and as such the hearing and the decision given by the aforesaid three Nyaya Panchayat cannot be held to be void merely on the ground that the Chairman of the Nyaya Panchayat was the brother of the complainant.
4. Another submission made by learned Counsel on behalf of Pothi petitioner was that the said petitioner was admittedly absent when the case was heard by the Nyaya Panchayat on September 7, 1969 and that the proceedings taken behind the back of the petitioner Pothi were void so far as he was concerned, as the Nyaya Panchayat was not empowered to convict the petitioner Pothi and pass a sentence against him in his absence. This contention appears to be well founded and deserves to be accepted. Section 30 of the Act empowers the Nyaya Panchayat to impose on any person convicted of an offence tried by it, any sentence of fine not exceeding Rs. 50/-. The proviso to sub-Section (2) of Section 52 of the Act specifically provides that no sentence shall be imposed by a Nyaya Panchayat on any accused person unless he appears either in person or by agent before it and the substance of his statement has been recorded by it. It is not disputed in the present case that Pothi accused did not appear before the Nyaya Panchayat either in person or through his agent before the Nyaya Panchayat on September 7, 1969 nor the statement of Pothi was recorded by the Nyaya Panchayat and as such the Nyaya Panchayat was not entitled to hear and decide the case before it, so far the accused petitioner Pothi was concerned, in his absence. SubSection (3) of Section 52 provides the procedure which has to be followed by the Nyaya Panchayat in case the accused person fails to appear before it, either in person or by agent even after the service of summons upon him. In that case, the Nyaya Panchayat has to apply to the Magistrate concerned who would compel the attendance of the accused person before the Nyaya Panchayat, as if it were the Magistrate trying the case. Thus when Pothi accused failed to, appear before the Nyaya Panchayat on September 7, 1969, the Nyaya Panchayat was not competent to proceed against the accused Pothi in his absence, but it should have taken steps to secure the attendance of the accused Pothi before it, by approaching the Magistrate in accordance with the procedure prescribed in sub-Section (3) of Section 52 of the Act. As this was not done and on the other hand the Nyaya Panchayat proceeded ex-parte against the accused Pothi, the proceedings in the case are vitiated, so far as the aforesaid accused-petitioner Pothi is concerned. The complaint filed in this case related to events which took place on August 23, 1969 and as more than seven years have elapsed since then, I do not consider it proper to remand the case back to the Nyaya Panchayat SO FAR AS Pothi petitioner is concerned.
5. No other point was argued before me. As a result of the aforesaid discussion, the writ petition is allowed so far as Pothi petitioner is concerned and the order passed by the Nyaya Panchayat, Kolari on September 7, 1969 as also the order passed by the Munsif Magistrate, Dholpur on April 22, 1971 are set aside so far as Pothi petitioner is concerned and his conviction and sentence as aforesaid are also set aside. However, the petition is dismissed so far as the petitioners Bhopat and Roshan are concerned. The parties are left to bear their own costs.