- (1.) .
(2.) THIS criminal revision is directed against the order dated 27 -7 -1984, passed by the Judicial Magistrate II, Jaunpur, initiating an inquiry against the applicant, Indrapati Singh, at the instance of Chauthi, Ram Samujh, Mahabir and Nirahu, opposite parties 2 to 5 in pending Revision No. 4 of 1984; Chauthi v. Indrapati Singh Briefly stated, the facts giving rise to this revision are that opposite parties 2 to 5 were convicted and sentenced to pay fine of Rs. 500/ - each in a case under Sections 504, 506 and 379, IPC decided on 15 -8 -1981, in Criminal Case No. 1 of 1981 Jangbahadur v. Chauthi by the Nyaya Panchyayat, Badlapur, district Jaunpur. Chauthi and others filed revision against the aforesaid order which is pending disposal before the Judicial Magistrate II, Jaunpur. The necessary formalities were complied with the opposite parties 2 to 5 for summoning the record of the Nyaya Panchyayat. Despite several letters from the Magistrate, the record of the case was not sent to his court by the present applicant, who was the Sarpanch of the aforesaid Nyaya Panchyayat, and, in the capacity of Sarpanch, he was the custodian of the record. The applicant sent the record only when a warning was issued by the aforesaid Magistrate that he will be prosecuted if the order of the court was not complied with. On 19 -8 -1983, Chauthi, opposite parly no. 2, moved an application before the Judicial Magistrate II, Jaunpur alleging that the record of the Nyaya Panchayat was forged and he prayed that an inquiry be held whether the said record was forged or genuine and also prayed that the hearing of the revision filed by him and others be stayed till then. The Magistrate was pleased to issue notice to the Sarpanch, the present applicant, to appear before him. Indrapati Singh, appeared before the Magistrate and moved an application on 17 -1 -1984 and prayed that the application dated 19 -8 -1983 by Chauthi be dismissed, because firstly his conduct, while acting as Sarpanch, can not be enquired into in the revision, which was pending before the said magistrate and secondly that an enquiry regarding genuineness of the record of the Nyaya Panchyayat could only be held under Section 340, CrPC and since Section 83 of the U. P. Panhyayat Raj Act provides that the provisions of the Code of Criminal Procedure will not be applicable to the proceedings before the Nyaya Panchayat, inquiry contemplated under Section 340, CrPC cannot be held. The learned Magistrate rejected this application of the applicant on 27 -7 -1984. Feeling aggrieved by this order, the applicant has preferred this revision. Section 83 of the Panchayat Raj Act reads : " .........The Code of Civil Procedure, 1908, the Code of Criminal Procedure, 1973, the Indian Evidence Act, 1872 and the Limitation Act, 1963 shall not apply to any civil case or revenue case in a Nyaya Panchayat except as provided in this Act or as may be prescribed. " This section purports to lay down the procedure to be observed by a Nyaya Panchayat, and, for that purpose, excludes application of the aforesaid Acts. It is difficult to hold that even though the Act confers some jurisdiction in a Magisirate or a Munsif, it intends that when acting as a Magistrate or Munsif such authority though otherwise governed in its procedure by the two Codes and the Limitation Act will not be governed by them. The proceeding arisen before a Magistrate on a revision being filed under Section 89 of the U. P. Panchayat Raj Act, even though in relation to a case travelled by a Nyaya Panchayat, is a proceeding before the Magistrate or Munsif, as such and, in my view, exclusion of the application of the Code of Criminal Procedure, Code of Civil Procedure and the Indian Limitation Act to the proceedings before the Munsif or Magistrate would require an express provision to that effect and the exclusion in the limited form contained in Section 83 of the U. P. Panchayat Raj Act, can not be interpreted to extend to the revision proceedings under Section 89 of the Act. This interpretation shall in my opinion, be conclusive to justice than a view to the contrary. Thus, the objection of the applicant that the provisions of the Code of Criminal Procedure were not applicable and the Magistrate was not competent to launch the aforesaid inquiry, cannot be sustained and is rejected. The second contention of the applicant is that the applicant is protected by the provisions of the Judicial Officers' Protection Act, 1850, as he claims himself to be a Judge under the U. P. Panchayat Raj Act. Under Section 49 of the U. P. Panchayat Raj Act, the Sarpanch shall form benches consisting of five benches each for the disposal of the cases and inquiries coming up before the Nyaya Panchayat. The Sarpanch of Nyaya Panchayat, Badlapur, district Jaunpur, Indrapati Singh, after the receipt of the complaint against opposite parties 2 to 5, formed a bench in his adminstrative capacity as Sarpanch. Panches constituting that bench were Bansbahadur, Deo Saran Dassu, Sabhajit Singh and Sarju. The Sarpanch himself was not a member of this bench and, therefore, he was not a party to the decision thereof. The Sarpanch was required to send the record of the case to the Magistrate as he was the custodian of the record in his administrative capacity. At no stage of this case, Sarpanch Indrapati Singh acted or participated as a member of the bench to decide the case. While constituting the bench or keeping the record in his custody or sending the same to the court of Magistrate, he was performing his duties in the administrative capacity only. While doing so, he was not acting as a court or Judicial tribunal and, therefore, I am of the opinion that he was not entitled to claim any protection under the Judicial Officers' Protection Act, 1850. Also no prosecution has been launched against him nor he has been held guilty of some offence but only an inquiry into the allegations made by Chauthi in his application that the record sent by the Sarpanch is forged is being conducted by the Magistrate. The inquiry conducted by the Magistrate is only with a view to find out whether the record sent by Sarpanch was genuine one or forged. The decision, is all together different, that the record, if found forged the person who had committed forgery may also come to light and the consequences thereof may follow than the order of the Magistrate rejecting the application of the present applicant, Indrapati Singh. It does not touch or affect the rights of the parties in the aforesaid criminal case or the revision pending before the Magistrate and, therefore, the said order is only an interlocutory order and the present revision is also barred by Sec. 397 (2) of the Code of Criminal Procedure.
(3.) AS discussed above, I am of the view that the Magistrate is competent to launch this type of inquiry to ensure that the genuine record has been sent to him by the Sarpanch. In the result, the revision fails and is dismissed. The interim stay order staying the operation of the impunged order dated 27 -7 -1984 is hereby vacated. Revision dismissed.;