1. A preliminary point has been taken by the learned counsel for the opposite party relating to the competency of this application.
2. Under Section 435, Criminal P. C., this Court has power to call for the records of all inferior criminal Courts situate within the local limits of its jurisdiction and to revise the orders of such Courts. Section 6 Criminal P. C., provides :
'Besides the High Courts and the Courts constituted under any law other than this Code for the time being in force, there shall be five classes of Criminal Courts in British India, namely : --
I.--Courts of Suasion,
III.--Magistrates of the First Class,
IV.--Magistrates of the Second Class,
V.--Magistrates of the Third Class,'
3. The question is whether a Panchayat is a Court constituted under any law within the meaning of Section 6
4. The Punjab Village Panchayat Act of 1939, it is admitted by the parties, has been in force in Jubbal State. The Act of 1939 repeals the Punjab Village Panchayat Act of 1921. But under Sub-section (2) of Section 2 of the Act of 1939, all Panchayats established under the Punjab Village Panchayat Act, 1921, shall be deemed to have been established under this Act. Under Section 5 of the Act of 1939, the Government may, by notification, establish a Panchayat in any Panchayat area. Under Sub-section (1) of Section 26, a Panchayat shall have jurisdiction to try upon complaint--(a) any of the offences specified in Schedule I to this Act, and under Section 27, the Government may, by notification, enhance the criminal powers of a particular Panchayat, Section 28 authorizes any Magistrate, before whom a complaint or report by the police of any offence triable by a Panchayat is brought, to transfer the proceedings to the Panchayat. Section 30 lays down the rule how a criminal case may be instituted before a Panchayat and Section 32 empowers a Panchayat to refuse to entertain certain criminal case. Section 35 authorizes a Panchayat to dismiss a criminal case for negligence in prosecuting. If the petition is not dismissed, the Panchayat is required to call upon the accused or the defendant to appear and answer the petition. By the provisions of Sub-section (3) of Section 36 a Panchayat imposes a fine and such fine is not immediately paid, it shall record an order declaring the amount of fine imposed and that it has not been paid, and shall forward the same to the nearest Magistrate who shall proceed to execute it in accordance with the provisions of the Code of Criminal Procedure, Section 39 is important. It empowers the District Magistrate or Sub-Divisional Magistrate, or any Magistrate especially empowered by Government in this behalf, either suo motu or on an application of the party aggrieved, to cancel or modify any order of acquittal, conviction or compensation made by the Panchayat.
5. Section 54 provides that the provisions of the Code of Criminal Procedure, 1898, the Code of Civil Procedure, 1908, and of the Evidence Act, 1872, shall not apply to proceedings before Panchayats, save to the extent, mentioned in this Act and this section enjoins upon the Panchayat to pass such order, sentence or decree as may be in accordance with justice, equity and good conscience. Sub-section (1) of Section 65 enacts the finality of the decision of the Panchayat and subject to the provisions of supervision by the District Magistrate or Sub-Divisional Magistrate in criminal matters and by the District Judge, in civil proceedings, no sentence, decree or other order passed by a Panchayat in judicial proceedings shall be subject to appeal, revision or review by any other Court or authority.
6. The question whether a Panchayat is an inferior criminal Court within the meaning of Section 435, Criminal P. C., was decided by a Division Bench of the Lahore High Court in Sarbuland v. Emperor, A.I.R. (28) 1941 Lah. 5 : (42 cr. L. J. 248). Young C.J., observed as follows: 'There can be no doubt that when criminal judicial powers are conferred upon a Panchayat by Section 22, Panchayat Act, (which corresponds to Section 26 of the Act, 1939), the Panchayat becomes a Court when acting in exercise of these powers.'
7. I have already given in detail a short summary of the important provisions of the Panchayat Act and after a careful consideration of the main provisions, it cannot but be admitted that a Panchayat constituted under the Punjab Village Act, 1939, is a Court and it is, in the exercise of its criminal jurisdiction, an inferior criminal Court.
8. The next question is whether its orders are revisable under Section 439, Criminal P. C.?
9. In the Lahore case cited above, their Lordships were dealing with a reference made by the District Magistrate, in which the Panchayat, purporting to act under the Village Panchayat Act, had passed a sentence of fine, usurping a jurisdiction punishing the offence under Section 406, whereas the actual offence committed was theft of property of value which the Panchayat could not try. Their Lordships held that it the Panchayat acted within the jurisdiction conferred upon it by the Village Panchayat Act, the High Court would have no power of interference, but if the Panchayat appeared to have arrogated to keep a jurisdiction, contrary to the provisions of the Panchayat Act, they could interfere under the inherent power and Sections 30 and 31 (corresponding to Sections 54 and 65 of the Act, 1939) would not bar the jurisdiction of the High Court to interfere.
10. It will, therefore, be necessary to go into the merits of the case. The facts are that the petitioner had a kuhl (water-channel) running a distance of two hundred zaribs over his land, feeding the land of the opposite party. The petitioner, it was alleged by the complainant-opposite party, had broken this water-channel in order to divert the water to his land and deprive the complainant of the water supply. The Panchayat found the petitioner guilty of the offence under Section 426, Penal Code (mischief) and it was within their power to sentence the petitioner to a fine of Rs. 6 only. The question of legality or illegality of the sentence is not the consideration of this Court. All that the Court has to find out is whether from the facts before it, the Panchayat could exercise the jurisdiction under the provisions of the Panchayat Act. In my opinion, the Panchayat was within its jurisdiction to have found the petitioner guilty of the offence under Section 426 (mischief) and, therefore, the question of invoking the inherent power does not arise.
11. Counsel for the petitioner argues that not only did the Panchayat impose the fine but also restrained the petitioner from doing such an act in future and it, therefore, exceeded its jurisdiction. I agree with the learned counsel for the opposite party that the expression used by the Panchayat meant no more than an admonition. Even if it be assumed that it is in the nature of an injunction, which does not lie within the powers of the Panchayat to make, it will be a nullity. With this modification, this application is allowed. The order of the Panchayat directing the accused to be restrained for future, is declared a nullity. The parties will bear their respective costs in this Court.