B.P. Sinha, J. - (1.) Damodar Prasad Singh, petitioner lodged a first information report before the Officer -in -charge of Begusarai Police Station on the 7th October, 1965, at 2 P.M. making allegations against the opposite party which constituted offences under Ss. 147 and 323, Indian Penal Code. Investigation proceeded. During the course of investigation, a protest petition was filed. Subsequently on completion of the investigation, police submitted a report that the case was false. The informant was examined on solemn affirmation on the basis of the protest petition already filed by him. After hearing both the parties, the learned Sub -divisional Magistrate passed a long order holding that there were sufficient materials on the record to support the prosecution case and to proceed with the matter. Accordingly, he took cognizance of offences under Ss. 147 and 323, Indian Penal Code. He transferred the case to the court of Mr. J. Nath, Munsif -Magistrate, First Class, Begusarai for favour of disposal. This order was passed on 21.7.1966. After the aforesaid order taking cognizance was passed, the complainant filed a petition that though the case was triable by Gram Panchayat, for the ends of justice the case should be tried by a regular criminal court at Begusarai. He, therefore, prayed that the jurisdiction of the Gram Panchayat may be cancelled. On this the learned Magistrate passed the following order: - - ......Heard the learned lawyer on behalf of the petitioner. In the interest of justice, the jurisdiction of the Gram Panchayat is cancelled. Send the record to the trial court as ordered above. In the trial court examination of the witnesses started in the year 1966. After a protracted trial, arguments were heard on the 2nd and 3rd December, 1968. On the 3rd of December, 1968 the defence lawyer raised a point that the trial was without jurisdiction, as the learned Sub -divisional Magistrate had cancelled the jurisdiction of the Gram Panchayat only after taking cognizance of the present case. The learned trying Magistrate in a long order after reviewing the provisions of law observed that a case triable by Gram Cutchery has initially to be instituted in the Gram Cutchery and if the Sub -divisional Magistrate is satisfied on some ground or the other that a case should not be tried there, he may withdraw that case under the provision of Ss. 70 or 73 of the Bihar Panchayat Raj Act (hereinafter to be called the 'Act'), but in this case the Sub -divisional Magistrate has not taken cognizance of the case under Sec. 70 or 73 of the Act, and passed the following order: - - "......I am of opinion that the Sub -divisional Officer was not legally competent according to the provisions of the said Act to cancel the jurisdiction of the Gram Panchayat Cutcherry in the facts and circumstances of the case.... I send back the case record to Sub -divisional Officer, Begusarai for passing orders in accordance with law." It is against this order that this revision application has been filed by the complainant. It is not disputed that the allegations constituted offences which were triable by Gram Cutcherry. It is also not disputed that a Gram Cutcherry having jurisdiction over the area was functioning at the relevant time. The learned counsel for the petitioner has, however, submitted that the impugned order of the court below is bad, in as -much as, for passing an order cancelling the jurisdiction of the Gram Cutcherry it was not necessary to file the complaint initially before Gram Cutcherry as has been observed by the learned Magistrate in this case. It has further been contended that there was no irregularity in taking cognizance in view of the latter order passed the same day.
(2.) Sec. 68 of the Bihar Panchayat Raj Act reads as follows: - - No Court shall take cognizance of any case or suit which is cognizable under the Act by a bench of the Gram Cutcherry unless an order to the contrary has been passed by the Sub -divisional Magistrate or the Munsif concerned under the provisions of the Act or any other law for the time being in force. It shows that the jurisdiction of the regular criminal court in respect of taking cognizance of offences which are triable by a bench of the Gram Cutcherry as provided under Sec. 62 of the Act is ousted unless a contrary order is passed under the provisions of the Act or any other law. In absence of such order, a criminal court has no jurisdiction to take cognizance of the case, The expression "Jurisdiction concurrent with that of the criminal court" used in Sec. 62 of the Act though not happily worded has been interpreted in several decisions in the way that the jurisdiction of the criminal court is latent and becomes patent only when the bar is removed by an order as contemplated by Sec. 68(1) of the Act. The order contemplated by Sec. 68(1) of the Act can be passed under Ss. 69, 70, and 73 of the Act. Sec. 70 provides for withdrawal of cases pending before the Gram Cutcherry. Similarly Sec. 73 which relates to cancellation of the jurisdiction of the Gram Cutcherry or quashing of the proceeding before the bench of the Gram Cutcherry also contemplates pendency of the case before a Gram Cutcherry. At the time of taking cognizance the order contemplated in the latter part of Sec. 68(1) can be passed under Sec. 69 of the Act; which reads as follows: - - If at any stage of proceedings in a case or suit pending before a Magistrate or Munsif it appears that the case or suit is one triable by a bench of the 'Gram Cutcherry' the Sub -divisional Magistrate or the Munsif, as the case may be, shall, if he is satisfied that the case or suit is not of such nature or of such difficulty that it ought to be tried by a regular court, at once transfer the case or suit to the bench having jurisdiction. When a complaint is filed before the Sub -divisional Magistrate he has to apply his mind to the allegations mentioned in the complaint petition and if he finds that though the allegations make out offences triable by Gram Cutcherry, the case is of such a nature or difficulty that it ought to be tried by a regular court, he will make an order accordingly and then take cognizance and transfer the case to a regular criminal court for disposal. Unless such an order is recorded he has to transfer the case at once to a bench of Gram Cutcherry having jurisdiction in the matter. Recording of such an order is condition precedent to taking cognizance in the case. Such order must be expressed. It cannot be taken as implied in the order taking cognizance. Without such order the cognizance taken will be without jurisdiction. The jurisdiction of a Gram Cutcherry is cancelled under Sec. 73 of the Act only when the case is pending there. The learned counsel has argued that the latter order should be read as a part of the original order taking cognizance and therefore, he has submitted that requirement of Sec. 68(1) is complied with and no irregularity has been committed in taking cognizance in the matter. But after the Sub -divisional Magistrate took cognizance and passed an order transferring the case to another Magistrate for disposal, he ceased to have seisin of the matter though the record of the case was not physically moved to the transferee court and he could not have passed any order under Sec. 69 of the Act ousting the jurisdiction of the Gram Cutcherry. He could pass such order only under Sec. 73 of the Act, but that is not the case here. As has noted above, order under Sec. 73 can be made where a case is pending before a Gram Cutcherry.
(3.) In support of the above view, a reference can be made to a decision of the Supreme Court in (1) Baldeo Singh and others V. State of Bihar and others ( : A.I.R. 1957 S.C. 612). In that case while dealing with the question regarding constitutional validity of Sec. 62 of the Act, S.K. Das, J. observed thus - - On a proper construction of Ss. 62 and 68, it is clear that there is really no discrimination and a case cognizable by a bench of the Gram Cut -cherry must be tried there, unless there has been an order to the contrary in the exercise of his judicial discretion by the Sub -divisional Magistrate or the Munsif concerned as contemplated by the latter part of Sec. 68. The provisions of the Act under which such an order can be passed are contained in the succeeding Ss. (meaning Ss. 69, 70 and 73) referred to by us. The whole scheme of Ch. vii of the Act is that a case or suit cognizable under the Act by a Gram Cutcherry should be tried by a bench of the Gram Cutcherry save in those exceptional cases which are provided for in Ss. 70 and 73. The reference to concurrent jurisdiction in Sec. 62 is explainable by reason of the provisions in Ss. 69, 70 and 73, so that on the transfer or withdrawal of a case from the Gram Cutcherry or the cancellation of the jurisdiction of the bench, it may not be said that the ordinary criminal courts also have no jurisdiction to try it. A point as to whether passing of the order as contemplated under Sec. 68(1) of the Act is a condition precedent for taking cognizance arose for consideration in the case (2) Bimal Singh and others V. State of Bihar (1965 B.L.J.R. 661). In that connection, it has been observed as follows: - - On a careful examination of the provision of law contained in Sec. 69, however, it would be noticed that this is the Sec. which, in my opinion, embraces within its ambit an order envisaged to be passed under the latter part of Sub -sec. (1) of Sec. 68 at the time of taking cognizance of a case by the Sub -divisional Magistrate. If at that time, either upon a complaint or upon a police report the Sub -divisional Magistrate finds that the case is one which is triable by a bench of the Gram Cutcherry under Sec. 62 of the Act but yet is 'of such nature or of such difficulty that it ought to be tried by a regular court' he has not to make an order to this effect and then take cognizance of the case. Unless he did so, he violates the prohibitory command of the Legislature contained in the first part of Sub -sec. (1) of Sec. 68 and does an act which he has no jurisdiction to do in absence of such an order....... At the time the complaint is filed before, or the police report is submitted to, the Sub -divisional Magistrate, he has got to apply his mind before taking cognizance as to whether the case is triable by a bench of the Gram Cutcherry if so, whether it is of such a nature or of such difficulty that it ought to be tried by a regular court, if not, to send the complaint or the police report for being instituted and filed before a bench of the Gram Cutcherry. The order to the contrary cannot be made under Sub -sec. (1) of Sec. 68 itself...... In that case Untwalia, J. with whom Anant Singh, J. agreed quoted with approval the following observation made in another bench decision of this Court in (3) Ramlakhan Singh V. Thakur Mahton (1954 B.L.J.R., 588) in support of his view: - - The 'provisions' of Sec. 68 just quoted above, in my opinion, indicate that the jurisdiction to take cognizance by the Sub -divisional Magistrate is taken away unless he had passed a contrary order under the provisions of this Act or any other law. This was a matter affecting the jurisdiction of the learned Sub -divisional Magistrate, and, if he intended to pass a contrary order, he should have done so in express terms and mentioned whether the contrary order was passed under this Act or under any other law. In my opinion, the order taking cognizance cannot be impliedly read as including an order also to the contrary under Act or under some other law within the meaning of Sec. 68 of the Act. Ramlakhan Singh's case is an authority for the proposition that the order taking cognizance cannot be impliedly read as including an order to the contrary as contemplated under Sec. 68 of the Act. It is needless to refer to other decisions on the point.;