Gurnima vs Hochhu Ram

D.B. Lal, J.—This is a petition by Gurnima under Article 227 of the Constitution read with Section 561-A of the Code of Criminal Procedure. It is contended that Hochhu Ram brought a complaint against the Petitioner before the Nyaya Panchayat, Sarahan, under Sections 447 and 427 of the I.P. Code and the allegations were that an apple tree and a peach tree belonging to the Respondent were growing on Khasra No. 612 admittedly in possession of the Respondent and that the Petitioner came and uprooted these two trees and also usurped possession on a portion of the land comprising Khasra No. 612. On these short allegations, the Petitioner was said to have committed offences under Sections 427 and 447 of the I.P. Code. The Nyaya Panchayat which entertained the complaint recorded the statements of Sopi, Dhupi and Bala Ram witnesses on behalf of prosecution, and also recorded the statements of Chhuru and Devi Dass on behalf of the accused. After considering their statements, the Nyaya Panchayat found that the Petitioner was proved guilty of the two offences and accordingly he was convicted on both the counts and was sentenced to pay a fine of Rs. 95/-. The Petitioner Gurnima came in revision before the Sub-Divisional Magistrate but could not succeed. The learned Magistrate considered the evidence recorded by the Nyaya Panchayat and maintained the conviction. Now he has appeared in this Court with the present petition and seeks to quash the order of conviction recorded against him.

The learned Counsel submitted on behalf of the Petitioner that there was already another complaint instituted against the Petitioner by Hochhu Ram and that as a result to that complaint he was acquitted by the Sub-Divisional Judge, and he brings in the plea of double jeopardy as provided for in the Constitution. Besides that, the learned Counsel argued that the dispute was in fact relating to the identity of the plot No. 612 which was not demarcated and could be stated to be a civil dispute and that there was no evidence upon which the Petitioner could be convicted by the two Courts below. A preliminary objection was raised on behalf of the Respondent that the tribunal against whose decision the present petition is filed is not made a party and on that ground alone the petition need be dismissed.

The scope of jurisdiction under Article 227 is well too defined. The Court will not be considered as if sitting in appeal against the decision of the Sub-Divisional Magistrate, and if there is an error as to wrongful exercise of jurisdiction, or if there is an infringement of any fundamental right, or if any principle of natural justice has been violated, or if any error apparent on the face of the record is committed so that manifest injustice is the consequence, these may peculiarly be the circumstances under which interference by the Court under [Article 227 may be justified. It will entirely be a different question that a particular set of witnesses were wrongly believed or disbelieved and that some other inference ought or ought not to have been drawn by the courts below. After hearing the learned Counsel, it appears the Petitioner was not satisfied with the appraisement of evidence made by the two Courts and wants reappraise-ment of that evidence. That is not the function of the court under Article 227. If the courts below considered the prosecution witnesses reliable and discarded the testimony of defence witnesses, that is the end of the matter so far as the exercise of jurisdiction under Article 227 is concerned. The question regarding double jeopardy was no doubt of prime importance. But for that a certain amount of evidence was required to be adduced as to what were the facts of the previous complaint and as to whether the Petitioner was discharged or acquitted, so that he could not be prosecuted for a similar offence. I have carefully perused the record, and I do not find any evidence to indicate as to what were the facts alleged in the previous complaint and as to what happened to that. We do not know as to whether the Petitioner was'' discharged or acquitted by a competent court for the very same offence. The two judgments of the Nyaya Panchayat and the Sub-Divisional Judge in fact do not make a mention of any plea of double jeopardy which was probably not taken before them. Thus the plea regarding double jeopardy has remained unsubstantiated.

It is abundantly clear that the case is hardly one in which no evidence was adduced, or that the finding of conviction could not otherwise be recorded. As I have already stated, the two Courts below have appraised the evidence in sufficient detail and there can be no reason why a different view should be taken in this Court. It was contended that Rs. 95/- was the fine imposed for both the offences cumulatively. To me it appears that would amount only to a mere irregularity which need not attract the attention of the Court at this stage. The learned Counsel also argued that although the Court may not exercise jurisdiction under Article 227, nevertheless it has its revisional powers and perhaps there may be a case for inherent exercise of jurisdiction u/s 561-A of the Code of Criminal Procedure. Considering this aspect of the argument, it may be stated that hardly any case is made out for exercise of inherent jurisdiction when probably a remedy in revision was amenable to the Petitioner. Besides that, I have considered the case from that angle as well, and to me it appears, no interference is possible on the revisional side. The learned Counsel then contended that the dispute was essentially of a civil nature. But from the facts alleged by the witnesses, it appears an offence of criminal trespass or mischief could also easily be inferred from the statements.

In the last I need take notice of the preliminary objection that for a petition under Article 226 where a writ of certiorari is claimed, and even for that matter under Article 227, whether the tribunal which passed the order is a necessary party. The law as to who are necessary or proper parties in a petition under Article 227 is well settled. A necessary party is one without whom no order can be made effectively; a proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding see: Udit Narain Singh Malpaharia Vs. Additional Member, Board of Revenue, Bihar, In a writ of certiorari, the order of tribunal which exercises judicial power is sought to be impugned, and in my opinion such a tribunal and even the parties in whose favour the order is made would be necessary parties. But the present petition is filed under Article 227 which clearly invokes the power of superintendence exercised by this Court over tribunals and the main purpose is to keep such tribunals within the bounds of their jurisdiction. Perhaps in such a petition whatever has been observed by the Supreme Court in connection with a petition under Article 226 may not be relevant. As such it may not be proper to dismiss the petition on this preliminary objection.

In view of what I have stated above, I do hot find any compelling reason to set aside the conviction of the Petitioner. The petition is accordingly dismissed without making any order as to costs.