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Dhani Ram Etc. Vs. Sub-divisional Judge and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtHimachal Pradesh High Court
Decided On
Case NumberCriminal Misc. Petn. No. 23 of 1963
Judge
Reported inAIR1965HP25,1965CriLJ550
ActsConstitution of India - Articles 226 and 227; ;Himachal Pradesh Panchayat Raj Act, 1953 - Sections 37A, 55A, 73 and 94; ;Indian Penal Code (IPC), 1860 - Section 228; ;Himachal Pradesh Panchayat Raj Rules - Rule 111
AppellantDhani Ram Etc.
RespondentSub-divisional Judge and ors.
Appellant Advocate Sita Ram, Adv.
Respondent Advocate K.C. Pandit, Govt. Adv. for No. 1 and; Mohal Lal, Adv. for Nos. 2 to 5
DispositionPetition allowed
Cases ReferredIn Empress v. Chait Ram
Excerpt:
.....high court to entertain a petition under article 226 and 227 - section 94 does not bar a jurisdiction on high court to entertain a petition under article 226 or 227. (ii) jurisdiction - petitioner interrupted proceedings relating to demarcation of land - proceedings initiated against petitioner - found guilty under section 228 - during pendency of proceedings petitioners brought application before sub-divisional judge for quashing of proceedings - petition dismissed by sub-divisional judge - filed petition under article 226 and 227 contending that order by nayaya panchayat was without jurisdiction as bench was not properly constituted - facts revealed that bench was not validly constituted - conviction and sentence of petitioner quashed. - .....nyaya panchayat, himri, sub-tehsil kotkhai and other panches, constituting bench no. 1 of the nyaya panchayat, had gone to village rewag for demarcating the land of shri moti ram. the land of the petitioners adjoined the land of shri moti ram. the petitioners were alleged to have interrupted the proceedings, relating to the demarcation of land and also to have insulted the members of bench no. 1. shri het ram, sarpanch, filed a complaint under section 228 i. p. c., against the petitioners, in the nyaya panchayat, about the alleged contempt. he also issued notices to the petitioners and constituted bench no. 3, of the nyaya panchayat, consisting of respondents nos. 2 to 4, for the trial of the complaint. the petitionerswere proceeded against ex parte as they did not appear despite.....
Judgment:
ORDER

Om Parkash, J.C.

1. The facts, giving rise to this petition, under Articles 226 and 227 of the Constitution of India, are as under :

2. Shri Het Ram, respondent No. 5, Sarpanch, Nyaya Panchayat, Himri, Sub-Tehsil Kotkhai and other Panches, constituting Bench No. 1 of the Nyaya Panchayat, had gone to village Rewag for demarcating the land of Shri Moti Ram. The land of the petitioners adjoined the land of Shri Moti Ram. The petitioners were alleged to have interrupted the proceedings, relating to the demarcation of land and also to have Insulted the members of Bench No. 1. Shri Het Ram, Sarpanch, filed a complaint under Section 228 I. P. C., against the petitioners, In the Nyaya Panchayat, about the alleged contempt. He also issued notices to the petitioners and constituted Bench No. 3, of the Nyaya Panchayat, consisting of respondents Nos. 2 to 4, for the trial of the complaint. The petitionerswere proceeded against ex parte as they did not appear despite service of summonses. The complaint was heard in their absence and was decided on the 24th February, 1963. The petitioners were held guilty, under Section 228 I. P. C., by Bench No. 3, and were fined Rs. 10/- each.

3. During the pendency of the complaint, the petitioners had, on the 16th February, 1963, moved the Sub-Divisional Judge, Theog, for quashing the proceedings, initiated on the complaint, or In the alternative, for the transfer of the case to his Court. The Sub-Divisional Judge issued notice to Bench No. 3 and also called for report, for the 7th March, 1963. The complaint was, in the meanwhile, disposed of, by the Bench, on the 24th February, 1963. In view of the disposal of the complaint, the application of the petitioners, filed before the Sub-Divisional Judge, was rejected as having become infructuous, on the 18th April, 1963.

4. On the same day, i.e., 18th April, 1963, the petitioners tiled a revision-petition, before the Sub-Divisional Judge, Theog, against their conviction and sentence, under Section 228 I. P. C., by Bench No. 3. They challenged their conviction on various grounds. The Sub-Divisional Judge dismissed the revision-petition and affirmed the decision of Bench No. 3. The petitioners have filed the present petition, under Articles 226 and 227 of the Constitution, challenging the orders of Bench No. 3 and the Sub-Divisional Judge.

5. The petitioners allege that the proceedings of Bench No. 3, and the order of conviction, passed by it, were without jurisdiction and illegal as the Bench was not properly constituted. They, further, allege that Bench No. 3 was barred from entertaining the complaint as the conditions precedent, as provided in Section 37A of the Himachal Pradesh Panchayat Raj Act, had not been complied with. The petitioners do not admit that they bad caused interruption, in the proceedings of Bench No. 1 or had insulted the members of that Bench. They maintain that even if it be held that they had caused any interruption, their act would not fall within the four corners of Section 228 I. P. C., as Bench No. 1, which was engaged only in defining the limits of land was not sitting in any stage of a judicial proceeding. The petitioners question the impartiality of Bench No. 1, especially of Shri Het Ram, Sarpanch.

6. The respondents denied the allegations, made by the petitioners, against, the impartiality of Bench No. 1. It was, also, denied that Bench No. 3 was not validly constituted or that its proceedings and order were without jurisdiction and illegal or that it could not entertain the complaint. The respondents pleaded that Bench No. 3 was constituted In accordance with law. It was, further, pleaded that the provisions of Section 37A of the Himachal Pradesh Panchayat Raj Act were not applicable to the case and Bench No. 3 was competent to entertain the complaint, though the conditions laid down, in the aforesaid section, had not been complied with. The respondents maintained that the proceedings relating to the demarcation of boundaries of land, by Bench No. 1, were judicialproceedings and that the petitioners had interrupted those proceedings and had also insulted the members of the Bench. A preliminary objection was also taken up, on behalf of the respondents, that the order of Bench No. 3, convicting and sentencing the petitioners, had become final and was not subject to the jurisdiction of this Court, under Article 220 or Article 227 of the Constitution and the petition was not maintainable.

7. It will be convenient to dispose of the preliminary objection, about the maintainability of the petition, first. The preliminary objection is based on Section 94 of the Himachal Pradesh Panchayat Raj Act, (hereinafter referred to as the Himachal Act). That section lays down that subject to the provisions of Sections 92 and 93, a decree or order passed by a Nyaya Panchayat, in any salt, ease, or proceeding, shall be final. Section 92 provides for appeal from a Bench, to the Full Bench, of the Nyaya Panchayat and Section 93 provides for revision to the Sub-Divisional Judge. The argument, on behalf of the respondents, was that as Section 94 declared the order of a Nyaya Panchayat to be final subject to the provisions of Sections 92 and 93 only, the order was not open to challenge, by a petition under Article 226 or Article 227 of the Constitution.

The point, which requires decision is, whether the finality, attached to the order of a Nyaya Panchayat, by Section 94, takes away the jurisdiction of this Court, to entertain a petition under Article 226 or Article 227 of the Constitution, against that order. A similar point had arisen for decision, in Jodhey v. State, AIR 1952 All 788. In that case Sub-section (5) of Section 85 of the U. P. Panchayat Raj Act provided that except as aforesaid, a decree or order passed by a Panchayati Adalat in any suit, ease or proceeding, under that Act shall be final and shall not be open to appeal or revision The words 'except as aforesaid' in Sub-section (5) referred to the right of revision conferred by Sub-section (1) of Section 85. It was contended, to that case, that in view of the provisions of Sub-section (5) that the order of the Panchayati Adalat shall be final, its validity could not be questioned, under Article 227 of the Constitution. This contention was repelled with the following observations:-

'A reading of the entire Article 227, Constitution of India in the light of the antecedent law on the subject leads one to the irresistible conclusion that the purpose of the Constitution makers was to make the High Court responsible for the entire administration of justice and to vest in the High Court an unlimited reserve of judicial power which could be brought into play at any time that the High Court considered it necessary to draw upon the same. Springing as it does from the Constitution, which is the parent of all Acts and Statutes in India, the fact that the judgment or order of a Court or Tribunal has been made final by an Act or the fact that the body performing judicial functions is a special Tribunal constituted under a Statute cannot be set up as a bar to the exercise of this power by the High Court. The prohibited area is to be found within the fourcorners of the Constitution itself and nowhere else.' (at P. 792)

8. I am in respectful agreement with the observations, made above. In the light of these observations, it is to be held that Section 94 of the Himachal Act does not bar the jurisdiction of this Court under Article 227 of the Constitution, to question an order of a Nyaya Panchayat.

9. So far as the effect of the provisions of Section 94 of the Himachal Act, on the powers, conferred by Article 226 of the Constitution, on this Court, is concerned, it is sufficient to point out that the provisions of Section 105 of the Representation of the People Act which laid down that every order of the Tribunal under that Act shall be final and conclusive, were held not to take away or whittle down the powers, under Article 226 of theConstitution, by the Hon'ble Supreme Court in Raj Krushna Bose v. Binod Kanungo, 1954 SCR 913 : (AIR 1954 SC 202). On the same analogy, it can be said, in the present case, that the provisions of Section 94 of the Himachal Act cannot take away or whittle down the powers of this Court, under Article 226 of the Constitution.

10. The preliminary objection, raised on behalf of the respondents, that Section 94 of the Himachal Act, takes away the powers of this Court, to entertain a petition under Article 226 or Article 227 of the Constitution, against an order of a Nyaya Panchayat, is not sound and is overruled.

11. It was contended, by the learned counsel for the petitioners, that Bench No. 3, which hadtried the complaint, against the petitioners, was not validly constituted. The argument of the learned counsel was that Shri Het Ram, Sarpanch, who had constituted Bench No. 3, was not competent to do so, as he had, himself, filed the complaint and was thus a party to the case, and, as also, he was personally interested in the case, being a member of Bench No. 1 to whom insult was alleged to have been offered by the petitioners. In support of his argument, the learned counsel placed reliance on Rule 111 of the Himachal Pradesh Panchayat Rules. Ordinarily, it is the Sarpanch of a Nyaya Panchayat, who is competent to constitute a Bench, for the trial of a suit, a criminal case or a proceeding. But Rule 111, referred to above, debars him from constituting a Bench in certain contingencies. This Rule lays down, inter alia, that, when a Sarpanch of a Nyaya Fanchayat is a party to a criminal case or is personally interested in the case, he shall, instead of forming a Bench himself, submit the papers to the District Judge, who shall constitute a Special Bench for the trial of that case.

It is not disputed that Shri Het Ram, Sarpanch, had filed the complaint, under Section 228 I. P. C. against the petitioners. It is, also, not disputed that he was a member of Bench No. 1, whose members were alleged to have been insulted, by the petitioners. Shri Het Ram, Sarpanch, wasclearly, a party to the case against the petitioners,and was also personally interested in it. He wasdebarred, under Rule 111, from constituting a Bench,for the trial of the complaint. It was obligatoryupon him, in view of the provisions of that Rule, to submit the papers to the District Judge, for the constitution of a Special Bench. Bench No. 3, which had tried the complaint, against the petitioners, had been constituted, in violation of the mandatory provisions of Rule 111 of Himachal Pradesh Panchayat Raj Rules and was, therefore, not validly constituted. There was an inherent defect in the constitution of the Bench and the proceedings, held by it, were without jurisdiction and illegal.

12. It was, next, contended by the learned counsel for the petitioners, that even if it be assumed that the petitioners had interrupted the proceedings, or had insulted the members of Bench No. 1, when the Bench was defining the limits of the land, the petitioners could not be proceeded against, under Section 228 I. P. C., as the Bench was not sitting in any stage of a judicial proceeding, the demarcation proceeding, being not a judicial proceeding. This contention of the learned counsel appears to have force. One of the important ingredients of an offence, under Section 228 I.P.C., is that the insult or interruption should have been offered to the public servant, when he was sitting in any stage of a judicial proceeding. The point for consideration is whether the proceeding for defining the limits of the land, conducted by Bench No. 1, was a judicial proceeding. The term 'judicial proceeding' has not been defined in the Himachal Act or in the Indian Penal Code.

According to Section 4(m), Criminal Procedure Code, the term 'judicial proceeding' includes any proceeding in the course of which evidence is or may be legally taken on oath. This definition is not exhaustive. In Queen Empress v. Tulja, ILR 12 Bom 36, it was held that an inquiry is judicial if the object of it is to determine jural relation between one person and another, or a group of persons, or between him and the community generally, but, that even a Judge acting without such an object in view is not acting judicially. In that case, the proceedings of a Sub-Registrar, relating to an inquiry, for the purpose of ascertaining, whether he should register a document, presented for registration, were held not to be judicial proceedings. At Page 939, Volume II, Penal Law of India, by Dr. Hari Singh Gour, Seventh Edition, it has been said that in order to be judicial, a proceeding must relate in some way to the administration of justice, or to the ascertainment of any right or liability and that all proceedings of a Judge are not necessarily judicial.

13. Keeping in mind, the above exposition of the term 'judicial proceeding' let us examine whether the proceeding of Bench No. 1, relating to the demarcation of the boundaries of land, was a judicial proceeding. According to Section 73 (a) of the Himachal Act, the limits of any holding or field are to be defined by the Nyaya Panchayat in accordance with the entries in the land revenue records. No elaborate enquiry or the recording of evidence is envisaged. So, Bench No. 1 was to demarcate the land of Shri Moti Ram, in accordance with the entries, in the revenue records. The object of demarcation proceedings was not to determine any jural relation between Shri Moti Ram and others. The demarcation proceedings did not relate, in any way, to the administration of justice, nor they were directed towards the ascertainment of any right or liability. The inescapable conclusion is that the proceeding of Bench No. 1, relating to the demarcation of boundaries of the land of Shri Moti Kam, was not a judicial proceeding. The Bench was not sitting in any stage of a judicial proceeding, within the meaning of Section 228 I. P. C., while conducting the demarcation proceeding.

14. It was argued, by the learned counsel for the respondents, that as Bench No. 1, consisting of the members of the Nyaya Panchayat, was a Judicial Tribunal, all its proceedings, including the demarcation proceeding, would be presumed to be judicial. This argument is misconcieved. It has been pointed out, above, that all proceedings, even of a Judge, are not judicial and that the proceedings can be judicial only if they relate, in some way, to the administration of justice or their object is to determine jural relation between two persons. In Empress v. Chait Ram, ILR 6 All 103, an inquiry, made even by a District Judge, on a reference by the Telegraph Department, for ascertaining whether a certain person was or was not the heir of the deceased was held not to be a judicial proceeding.

15. The demarcation proceeding, conducted by Bench No. 1, was not a judicial proceeding, and if any interruption or insult was offered by the petitioners to Bench No. 1, while it was engaged in that proceeding, their action did not fall within the four corners of Section 228 I. P. C.

16. It was, also, contended by the learned counsel for the petitioners, that as, in the present case, conditions precedent to the entertainment of a complaint by a Nyaya Panchayat, as laid down, in Section 37A, and the subsequent Sections of the Himachal Act, were not complied with, Bench No. 3 was not competent, in view of the provisions of Section 55A of that Act, to entertain the complaint, against the petitioners. This contention of the learned counsel is without any substance. Section 55A of the Himachal Act lays down that the Nyaya Panchayat shall not entertain a civil suit or a criminal case, unless an application under Section 37-A has been filed before the Gram Panchayat and until three months nave expired since the filing of the application. Section 37A reads :

'An application for the compromise of a civil dispute or the composition of a criminal case, which is compoundable without the permission of the Court under the provisions of the Code of Criminal Procedure, 1898, shall be made in the prescribed form to the Gram Panchayat of the area within the local limits of whose jurisdiction the defendant or the accused, as the case may be, resides.'

17. It is clear that the provisions of Section 37A will govern only that criminal case, which is compoundable without the permission of the Court. A case, under Section 228 I. P. C., is not at all compound-able. The provisions of Section 37A, and for the matter of that, the provisions of Section 55A, do not govern a case, under Section 228 I. P. C.

18. In view of my findings that Bench No. 3was not validly constituted and all the proceedings,held by it, were without jurisdiction and illegal,and that Bench No. 1 was not sitting in any stageof a judicial proceeding, while defining the limitsof the land of Shri Moti Ram, and that even if itbe held that the petitioners had offered any insultto, or had interrupted the proceedings of BenchNo. 1, their action could not fall within the fourcorners of Section 228 I. P. C., the proceedings held byBench No. 3, and the conviction and sentence ofthe petitioners, under Section 228 I. P. C., are to bequashed.

19. The result is that the petition is allowed and the proceedings, held by Bench No. 3, and the conviction and sentence of the petitioners, under Section 228 I. P. C., are quashed, without deciding the controversial questions whether Bench No. 1 was, partial to Shri Moti Ram, and biased against the petitioners, and whether the petitioners had, in fact, interrupted the proceedings of, or offered insuit, to Bench No. 1. The fine, if paid by the petitioners, shall be refunded, to them.


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