SHEONARAIN PATHAK Vs. LACHMI NARAIN PATHAK
HIGH COURT OF PATNA
LACHMI NARAIN PATHAK
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Imam, J. -
(1.) This is an application under Article 227 of the Constitution. It appears that the petitioners were convicted by a Gram Cutcherry constituted under the Bihar Panchayat Raj Act, 1947 (Bihar Act 7 of 1948). The conviction purported to be under the Cattle Trespass Act. The Sub-divisional Magistrate, however, purporting to act under Section 73 of the Act set aside the order of conviction and remanded to the Gram Cutcherry the case for retrial.
(2.) It was contended on behalf of the petitioners that if the Subdivisional Magistrate purported to set aside the order of the Gram Cutcherry convicting the petitioners under Section 73 (1) of the Act, then he had no jurisdiction to send the case back to the Gram Cutcherry for retrial, because under Sub-section (2) where a Subdivisional Magistrate makes an order under Sub-section (1) the complainant may institute a case afresh in the Court of the Subdivisional Magistrate. It is best at this stage to quote Sub-sections (1) and (2) of Section 73 of the Act.
"73 (1) If there has been a miscarriage of justice or if there is an apprehension of miscarriage of justice, in any case or suit, the Sub-divisional Magistrate in respect of any case and the Munsif in respect of any suit may, on the application of any party or of his own motion at any time during the pendency of the suit or case and within 60 days from the date of a decree or order, call for the record from a bench of the Gram Cutcherry and may for reasons to be recorded in writing-- (a) cancel the jurisdiction of the bench with regard to the suit or case; or (b) quash any proceedings of the bench at any stage, or (c) cancel any order or decree passed by the bench. (2) When an order has been passed by a Munsif or the Subdivisional Magistrate under Sub-section (1) in respect of any suit or case, as the case may be, the complainant or the plaintiff, as the case may be, may institute the case or suit afresh in the Court of the Sub-divisional Magistrate or a Munsif of competent jurisdiction." It will be seen therefore, that Section 73 makes no provision for retrial of a case by a Gram Cutcherry where a Subdivisional Magistrate or a Munsif has acted under Sub-section (1). Sub-section (2) makes it perfectly clear that where a Subdivisional Magistrate or a Munsif has acted under Sub-section (1), it is open to the complainant or plaintiff to institute a case afresh, but this time either before the Subdivisional Magistrate or the Munsif and not the Gram Cutcherry. The reason for this provision seems to be indicated in Sub-section (1). Sub-section (1) clearly states that where there has been a miscarriage of justice or where there is an apprehension of miscarriage of justice, the power is given to the Subdivisional Magistrate or the Munsif, as the case may be, to call for the record from a bench of the Gram Cutcherry, and for reasons to be recorded, to quash its proceedings or cancel any order made by it. As I read this section, it seems to me that the intention of the Legislature was that where the Subdivisional Magistrate or the Munsif was satisfied that there was a miscarriage of justice or the likelihood of miscarriage cf justice in any case being tried or triable by a Gram Cutcherry, then its proceedings could be either quashed or any order made by the Gram Cutcherry could be set aside. Obviously, when any such proceeding is quashed or an order is set aside, the intention was that the Gram Cutcherry should no longer have jurisdiction to try that case. It is for this reason that the complainant or the plaintiff, as the case may be, has been given the right to institute afresh a case either before the Subdivisional Magistrate or the Munsif. I am not concerned in this particular case as to whether the reasons given by the Subdivisional Magistrate establish the position indicated in Sub-section (1) of Section 73. He had, however, specifically stated that he was setting aside the order of the Gram Cutcherry under Section 73 of the Act. I must accordingly read his order to mean that there was either a miscarriage of justice or there was an apprehension of miscarriage of justice in his mind.
(3.) The question which now arises is as to what are the powers of this Court in rectifying an order made by the Subdivisional Magistrate which is entirely illegal having regard to the provisions of Section 73 (2). I must regard the order of retrial by the Gram Cutcherry made by the Subdivisional Magistrate as being an order without jurisdiction and such being the position, I am satisfied that under the powers of superintendence under Article 227 of the Constitution this Court can intervene. The power of superintendence of this Court would be meaningless if it did not carry with it the jurisdiction to set aside an order of a Court or Tribunal which had passed the order without jurisdiction. I would accordingly allow the application and set aside that part of the order of the Subdivisional Magistrate whereby he ordered the case to be tried by the Gram Cutcherry. The order of conviction having been set aside by the Subdivisional Magistrate, the only course which the complainant in the case can take is that indicated in Sub-section (2) of Section 73 of the Act.;
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