Rama Nand Jha vs Kamla Nand Jha and Others

S. Haider Shaukat Abidi, J.—Both these revisions have been filed by Rama Nand Jha, petitioner against the common order dated 9-8-1983 passed by the learned Chief Judicial Magistrate Katihar in C. II 283 and C. II 301 of 1982 dismissing the complaint. They have also prayed for passing an order for an enquiry u/s 398 of the Code of Criminal Procedure. Having heard learned for the counsel parties, both the cases are being disposed of by the common judgment.

Both the cases have arisen out of a proceeding started by the petitioner Rama Nand Jha, Sarpanch of Domarja Gram Panchayat on the basis of a report from Dalpati dated 20-8-1982 to the effect that there was an apprehension of breach of peace with respect to some lands as given in the petition, as the three different persons were planning to cut the crop from the field. The Sarpanch stopped all the three parties from doing so and he passed an order u/s 64(1) of the Gram Panchayat Raj Act and got a notice served No. 22-8-1982 upon the opposite parties directing them not to cut the paddy. He also deputed the Dalpati to guard the land and he forwarded the report to the Sub-Divisional Magistrate, Katihar u/s 64(1) of the Gram Panchayat Raj Act. The accused in the case No. C. II 282/82 cut the paddy crop on 6-9-1982 from one bigha land over which the Sarpanch had stopped the party from going over the land. Similarly, the accused in the case No. C II 301/82 cut the paddy on 6-9-1982 from 1 bigha of the land over which the Sarpanch had also stopped the party. The Sarpanch thereafter filed a complaint under Sections 188/109 of the Indian Penal Code (for short IPC) and the same was forwarded to the learned Chief Judicial Magistrate for taking cognizance of the offence against the accused. Then again on 14-9-1982 the accused persons named in C. II 301/82 cut paddy of the remaining land for which the Sarpanch filed another petition on 18-9-1982 for taking cognizance u/s 188, IPC against the said persons. The learned Sub-Divisional Magistrate drew the proceeding No. P. 1288/82 on the report of the Sarpanch on 26-8-1982. The same was filed vide order sheet, dated 22-9-1982 because the statutory time had ended. The Court before taking the cognizance u/s 188, IPC, against the accused persons in both the cases, which are out of the original report of the Sarpanch, considered the question as to whether the requirements of law had been fulfilled. The Magistrate after considering all the matter held that the Sarpanch was not a public servant as such the violation of his order is not punishable u/s 188, IPC and so cognizance could not be taken of the offence.

Learned Counsel for the petitioner has urged that this order of learned Magistrate refusing to take cognizance is bad in law as the Sarpanch is a public servant which is made out on the own finding of the court below. As to this contention Section 64 of the Bihar Panchayat Raj Act (for short the Act) says that wherever the Sarpanch has reason to believe that a breach of peace or disturbance of the public tranquility is imminent and immediate prevention or speedy remedy is desirable, he may by a written order stating the material facts of the case and served in the prescribed manner, direct any person to abstain from a certain act or to take action with respect to a certain property in his possession or his management. Sub-Clause (2) provides that as soon as the Sarpanch has issued an order Section (1) he may submit the proceedings of the case to the Sub-Divisional Magistrate who may either confirm the order or discharge the notice after hearing the parties to the dispute, if they so desire. Sub-section (23) also provides that this order shall remain in force for thirty days. Thus it appears that the Sarpanch has got power to pass an order which remains in force for thirty days or unless confirmed or discharged.

As regards the question that the Sarpanch is a public servant, Section 21 of IPC defines a person falling under any of the descriptions hereinafter following, namely : Third, any Judge including any person empowered by law to discharge, whether by himself or as a member of any body of persons, any adjudicatory functions. Thus according to this definition the Sarpanch discharges the function. Section 57 of the Act provides that every suit or case instituted under this Act shall be instituted before the Sarpanch or, where the services of the Sarpanch are not available, before the Up-Sarpanch, and shall be heard and determined by a Bench of the Gram Cutcherry consisting of the Sarpanch and two Panches from the panel to be named by the respective parties to the suit or case and two other Panchas selected" by the Sarpanch in such manner as may be prescribed. Thus according to this section earlier before a Sarpanch a suit is instituted and which can be a Bench of the Gram Cutcherry consisting of Sarpanch and two Panchas. In this case, the Sarpanch has passed the order u/s 64(1) restraining the parties from cutting the crop and has passed prohibitory order, but in spite of the prohibitory order the offence has been committed, according to the Sarpanch by cutting away the crops. This order of the Sarpanch as provided u/s 64(3) can remain in force for thirty days or till it is modified by the Sub-Divisional Magistrate as provided u/s 64 of the Act. A Division Bench of this Court in the case of Ram Lochan Mishra (a) Loachi Mishra and Ors. v. Jibeshwar Jha @ Jyotisijee and Anr. 1977 PLJR 349 has observed while making the distinction between an order passed u/s 64 of the Act and u/s 144 Cr. PC that "Section 64 has its effect only for a period of thirty days unless earlier rescinded by the Magistrate under Sub-section (2) of Section 64. An order u/s 144 of the Code is, however, effective for a period of two months, thus obviously for a longer duration. Besides, if the State Government so considers, the effect of such an order may be prolonged up to six months. No such thing can be done in respect of an order u/s 64 of the Act. It appears to me that the intention of the Legislature while enacting Section 64 of the Act was to vest the Sarpanch with power similar, though in limited way, to the one contained in Section 144 so as to be able to meet an emergent situation. The Sarpanch unlike the Magistrate acting u/s 144 of the Code, has not been given the final say in the matter. Thus when so long the order of a Magistrate remains in force it has not to be violated and any violation of an order of a public servant in its judicial capacity can be challenged u/s 195 Cr. PC incase of violation on a complaint by the said public servant. Even the Sarpanch is, therefore, competent u/s 195, as a public servant to move the application for action u/s 195, Cr. PC for violation of the order passed by him u/s 64 of the Act. It appears that till the Sarpanch took step for action u/s 188, IPC the order of the Sarpanch was not set aside or modified. In these circumstances, the Court below was not right in holding that the Sarpanch was not a public servant, and so the refusal to take cognizance simply on the basis that he was not a public servant is illegal, erroneous and as such the impugned orders dated 9-8-1983 are set aside and the case is remanded to the Court below to proceed in accordance with law. The L.C. record is directed to be sent to the court below for disposal in accordance with law.