B.D. Singh, J.@mdashThis application under Article 227 of the Constitution of India has been preferred by three petitioners, namely, Jokhan Singh, Baleshwar Singh and Vijay Narain Singh, against the judgment of the sub-divisional officer, opposite party No. 7, passed u/s 73 of the Bihar Panchayat Hai Act, 1947 (hereinafter referred to as ''the Act'') confirming the judgment and order of the Gram Cutcherry dated the 18th April, 1969, convicting petitioner No. 1 u/s 357 of the Indian Penal Code (hereinafter referred to as ''the Code'') and sentencing him to a fine of Rs. 2/- and in default to undergo 12 hours'' simple imprisonment; petitioner No. 2 u/s 294 of the Code and sentencing him to pay a fine of Re. 1/- and in default to undergo simple imprisonment for 8 hours and petitioner No. 3 under Sections 323 and 294 of the Code and sentencing him under the former section to a fine of Rs. 2/- and under the latter Section Re. 1/- and in default of payment of fines under those two sections simple imprisonment for one day.
2. A case was instituted against the petitioners at the instance of Marjad Koeri (opposite party No. 1) on the allegation that on the 30th January, 1968, while Marjad Koeri was returning with a bundle of grass, he saw petitioners 2 and .3 removing the branches from his bamboo clump, on which he protested, whereupon petitioner No. 3 asked opposite party No. 1 to go away, otherwise he would assault him and he began to abuse him. In the meantime Jokhan, petitioner No, 1, also came there and he ordered them to assault opposite party No. 1 and he himself began to abuse him. Thereafter petitioner No. 3 gave one lathi blow on opposite party No. 1. His further case was that petitioners 1 and 2 had removed all the branches of his bamboo clump. It was alleged that he had incurred a loss of Rs. 10/- due to the said action of the petitioners. Opposite party No. 1 then filed a complaint before the Gram Cutcherry, a true copy of which is Annexure 1 to the present application. Subsequently, a petition was filed by the petitioners before opposite party No. 7 u/s 73 of the Act to the effect that there was enmity between the Sarpanch and Daroga Singh, father of petitioner No. 3, uncle of petitioner No. 2 and nephew of petitioner No. 1, and, therefore, in the said petition they prayed for transferring the case from the Gram Cutcherry to another Gram Cutcherry or withdrawing it to his court to be tried by some Magistrate, but the same was rejected by an order dated the 9th September, 1968. The members of the Gram Cutcherry examined witnesses in their court, who were produced on behalf of the opposite party No. 1. They also made local inspection and made enquiry from the neighbouring people and from them they learnt that the occurrence as alleged by the opposite party No. 1 was correct. In their Judgment dated the 18th April, 1968, they observed that from the evidence of the witnesses of opposite party No. 1 and from the inquiry made by them in the local inspection as well as from the version of the neighbouring people it was clear that the story of occurrence, as alleged by opposite party No. 1 was correct and therefore, they convicted and sentenced the petitioners, as mentioned above.
3. On the 23rd May, 1969, the petitioners filed another application before the Sub-divisional officer stating therein that about 1 1/2 months earlier a date was fixed by the Gram Cutcherry for examination of witnesses and although the petitioners appeared before the Gram Cutcherry no action was taken. The petitioners were not even informed of the date to which the proceeding was adiourned by the Gram Cutcherry. The sub-divisional officer on their application called for a report from the Gram Panchayat Supervisor of Ramgarh Block, who submitted a report dated the 24th July, 1969, a true copy of which is Annexure 3 to this application. In the said report he had mentioned: (a) final orders in the case of the petitioners were passed by the Gram Cutcherry on the 18th April. 1969 convicting them; (b) the petitioners had produced before the Gram Panchayat supervisor a written document from which it transpired that the case was compromised in writing between the parties but the compromise was not recorded by the Gram Cutcherry; (c) the order dated the 18th April, 1969, of the Gram Cutcherry was not communicated to the petitioners and (d) the Sarpanch was on inimical terms with the petitioners. However, the Sub-divisional officer after hearing the parties did not find the allegation of the petitioners as correct and did not accept the report and confirmed the judgment and the order of the Gram Cut-cherry dated the 18th April. 1969. A true copy of the order and the judgment are Annexures 4 and 4/a to this application.
4. Mr. Janeshwar Singh, learned counsel appearing on behalf of the petitioners urged that the sub-divisional Magistrate erred in not relying on the report of the Gram Cutcherry supervisor, which clearly supported the allegations of the petitioners. In my opinion, the sub-divisional officer u/s 73 of the Act has no power to call for a report from the Gram Cut-cherry supervisor; instead he could have called for the record from the Bench of the Gram Cutcherry. Therefore, in my opinion, the report of the Gram Cutcherry Supervisor is not admissible. The sub-divisional officer had also directed the Sarpanch to say anything against the report if he so wanted. The Sarpanch, however filed a petition challenging the statements made in the said report and gave explanation. The sub-divisional Magistrate after perusing the record of the case and the report of the Sarpanch found that the case of the compromise given out by the petitioners was not correct. The judgment of the Gram Cutcherry was not delivered behind the back of the petitioners but in their presence and that the petitioners'' case regarding enmity with the Sarpanch was also not true. If that was the fact the Sub-divisional Magistrate observed: "the petitioners would have stated that fact in the petition on 23-5-1969 but they did not do so." I have gone through the judgment of the sub-divisional Magistrate. In my opinion, he has given cogent reasons for arriving at the said conclusion.
5. Learned counsel for the petitioners then urged that the Bench of the Gram Cutcherry had committed grave irregularity in introducing the extra-judicial knowledge. Admittedly they made local inspection and examined some persons in the locality and thereafter they have clearly stated in their judgment that they were satisfied from the inquiry and the information given by the neighbouring people of the place of occurrence that the case of the complainant was correct. He submitted that this amounts to a judicial bias. In my opinion, this point also cannot be raised on behalf of the petitioners before us under Article 227 of the Constitution of India, as the petitioners had not raised this point before the sub-divisional Magistrate. It is well established that when a statute provides an alternative remedy it has to be exhausted before the petitioners are entitled to move this Court under writ jurisdiction. The alternative remedy is specifically provided in this case in Section 73 of the Act. Learned counsel, however, urged that mainly on this point their case was referred to the Division Bench by A. B. N. Sinha, J. (as he then was) by an order dated the 19th May, 1970. Since the petitioners as well as counsel of the opposite parties have argued at length on this point and since it involves interpretation of certain sections of the Act and the Rules of the Bihar Gram Cutcherry Rules. 1962, hereinafter referred to as ''the Rules'', I proceed to examine the merit of this contention of learned counsel also in some detail.
6. Learned counsel urged that the irregularity committed by the members of the Gram Cutcherry while importing their personal knowledge derived from the neighbouring people of the locality is of major character and it was apparent on the record, and therefore, the sub-divisional Magistrate ought to have quashed the judgment and order of the Gram Cutcherry, even if the petitioners had not made any allegation before him on this score. In order to substantiate his contention he relied on
"No Sarpanch or Up-Sarpanch or Panch shall take part in any proceedings in which he is personally interested. Provided that the fact that the Sarpanch, Up-sarpanch or Panch has got personal knowledge of the facts of a case or suit shall not by itself disqualify him from taking part in the proceedings."
It may be noticed that the proviso makes it clear that if the Sarpanch, Up-Sarpanch or Panch has got personal knowledge of the facts of the case or suit, it shall not by itself disqualify him from taking part in the proceeding. Therefore, even if in the instant case, the Panchas derived knowledge by examining the witnesses in the locality of the place of occurrence, they have not, in my opinion, committed any error.
7. Further, Section 59 provides that where a bench of the Gram Cut-cherry does not succeed in bringing about an amicable settlement under the preceding section, or otherwise takes up the hearing or trial of a suit or case, it shall make an enquiry, receive such evidence as it considers necessary and record its judgment. The meaning of the word "inquiry" as given in Oxford Dictionary Vol. V, 1961 print, page 323, is "the action of seeing esp. (now always) for truth, knowledge or information concerning something; search, research, investigation, examination." Even under the Code of Criminal Procedure "inquiry" includes every inquiry other than a trial conducted under this code by a Magistrate or court. Therefore, the contention of learned counsel for the petitioners that if they had examined the members of the locality, they ought to have been examined and cross-examined after oaths were administered to them, has no substance. In my opinion, Section 59 gives ample power to the members of the Gram Cutcherry to make inquiry and that will also include gathering information from the people of the locality regarding any occurrence with which they are concerned. Besides, they are not bound to follow any law of evidence or procedure other than the procedure prescribed by or under the Act, as it will be evident from Section 60 of the Act, which is to this effect:
"Subject to the provisions of this Act and to any rules or directions that may be made or issued by the Government in this behalf, the procedure to be followed by a bench of the Gram Cutcherry shall be such as it may consider just and convenient and the bench shall not be bound to follow any laws of evidence or procedure other than the procedure prescribed by or under this Act."
Further from the said section it is also clear that a wide discretion has been given to the Gram Cutcherry in following the procedure which they think just and convenient, subject of course to the provisions of the Act and any rules or direction that may be made or issued by the Government in this behalf.
8. Learned counsel, however, referred to Rules 40, 42 and 47 to 49 of the Rules, but those rules are in no way in conflict with the provisions of the sections, which I have referred to above. It is well established that the rules are always supplementary to the provisions of the sections. Rules cannot override the provisions of the sections.
9. Learned counsel then contended that the meaning of the words ''Personally interested'' occurring in Section 56 of the Act is not confined to pecuniary interest. It includes also personal knowledge of the material facts of the case. In order to find support to his contention he relied on
10. Learned counsel then referred to the case of Somar Jamadar v. Gram Panchayat Committee, Raisa 1955 BLJR 120 : ILR 34 Pat 50 : AIR 1955 Pat 1593 and Umesh Chandra Mandal v. Madhusudan Mandal 1958 BLJR 56. In my opinion, those cases also are not at all helpful to the contention advanced on behalf of the petitioner. No doubt, their Lordships were dealing with Section 56 of the Act, but those cases related to the period before the proviso to Section 56 was introduced by the amendment of 1959 which has considerably narrowed the meaning of expression ''personally interested'' as I have held earlier. That apart, the facts in those cases were also quite different to those of the present case. In Somar Jamadar''s case the Sarpanch, who was the complainant, had taken part in the trial and he acted both as a complainant and a Judge. In that circumstances, their Lordships, observed that the expression ''personally interested'' was not limited to any pecuniary interest or to any private interest. The words ''personally interested'' did not imply mere intellectual interest of a Judge or the court, but something of the nature of an expectation of advantage to be gained, or of a loss or some disadvantage to be avoided, by the person who was said to be interested in the case. In Umesh Chandra Mandal''s case the Sarpanch who was one of those who tried the case, was present at the place and time when the occurrence took place. Therefore, it was held that the trial by the Gram Cutcherry was without jurisdiction, and its judgment was a nullity because it contravened the provisions of Section 56 of the Act.
11. Lastly, learned counsel placed reliance on Dharam Sonar v. Budhan Sonar ILR 1969 Pat 306. where Untwalia, J. while dealing with the provisions contained under Sections 58 and 59 of the Act held that the trial could commence only when a Bench of the Gram Cutcherry did not succeed in bringing about an amicable settlement u/s 58. The trial was vitiated inasmuch as the Bench of the Gram Cutcherry did not make endeavour to bring about settlement. His Lordship further held while dealing with Section. 59 that "the order of conviction of the petitioner based merely on the enquiry report cannot be supported on general principles of law." Learned counsel has laid emphasis on the above observation of his Lordship with regard to Section 59. In my view, the above observation of his Lordship also will be of no avail in the instant case, as in that case the conviction was based exclusively on the enquiry report. In the instant case, as mentioned earlier, the conviction is not based exclusively on the enquiry made by the Panches on the spot, but also on the evidence which they had taken in their court.
12. After careful consideration, I find no flaw in the Judgment and order of the Gram Cutcherry, which has rightly been affirmed by the impugned order passed by the Sub-divisional Magistrate (opposite party No. 7) and they have got to be upheld.
13. In the result, the application Is, accordingly, dismissed.
Anwar Ahmad, J.
14. I agree.
