Decided on December 11,1952

AHIV KUMHAR Respondents


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.;

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