ORDER
S.N. Imam, J.
1. This is an application against the order of the learned Subdivisional Officer who has cancelled or quashed the order of conviction passed by the Gram Cutcherry against the opposite party under Section 379 of the Indian Penal Code.
2. The prosecution case was that the opposite party had stolen a bamboo.
3. The point taken before me is that the Sub-divisional officer had no jurisdiction to cancel or quash the order of the Gram Cutcherry convicting the opposite party on the ground that no notice had been issued on the complainant or the State before such an order was passed by the learned Sub-divisional Officer. In my opinion, there is considerable amount of forces in this submission. Section 73 of
the Bihar Panchayat Raj Act, 1947, has provided as follows:
“(1) If there has been a miscarriage of justice or if there is an apprehension of miscarriage of justice in any case or suit, the Subdivisional Magistrate in respect of any case and the Munsif in respect of any suit may, on the application of any party or of his own motion, at any time during the pendency of the suit or case and within 60 days from the date of a decree or order, call for the record from a bench of the Gram Cutcherry and may for reasons to be recorded in writing
(a) cancel the jurisdiction of the bench with regard to the suit or cases; or
(b) quash any proceedings of the bench at any stage or;
(c) cancel any order or decree passed by the bench”.
Other clauses of that section need not be referred to. The learned lawyer for the opposite party, submits that this section does not provide for any notice to be issued either on the State or on the complainant; and, therefore, if the learned Subdivisional Officer did not issue any notice on either of them or both of them, it cannot be said that the order of the learned Subdivisional Officer was without jurisdiction. In my opinion, it cannot be said on the reading of Section 73 of the Act that the Subdivisional Officer should act without notice. The section is silent on this point, and because the section is silent on this point, it becomes necessary to apply the elementary principles of criminal jurisprudence. In S.M. Sudevi Devi v. Sovaram Agarwallah, 10 Cal WN 306 (A) at page 310 it has been observed as follows:
“It is an elementary principle that (in the absence of any special legislative rule excusing notice) no order should be made in favour of one party against and to tile prejudice of another unless that other has had an opportunity of showing that it should not be made”.
This principle is so well established that there must be very strong reason for the court not following it; and, as I have already pointed out, there is nothing to show from Section 73 of the Bihar Panchayat Raj Act that the Magistrate can act under Section 73 without giving notice to the party against whom the order may be passed. I may point out that in the above quotation the following words are of utmost importance; “in the absence of any special legislative rule excusing notice”, that is to say, unless the Act expressly provides that notice need not be issued, notice should be issued; and that being so, in my opinion, notice should have been issued on the State or the complainant or on both. In reply to this, Mr. Kaushal Kishore Sinha submitted that notice had been issued on the Gram Cutcherry. The Gram cutchery is not a party; it is a tribunal. The decision I have cited refers to the party, that is to say, the notice must be issued to the party. If notice is issued to a tribunal, that cannot mean that notice has been issued on the party; and to pass an order in absence of the parties or even one of the parties concerned without notice –which order may be prejudicial to the party — is on the very face of it ille-gal and no court of justice can possibly permit it unless the law has expressly provided so. In the
present case no such express provision is to be found in the Bihar Panchayat Raj Act, 1947.
4. That being the position, the order of the
learned Sub-divisional Officer cancelling or quashing the order of the Gram Cutcherry convicting the
opposite party must be set aside and this matter is
sent back to the learned Subdivisional Officer for rehearing the application that was filed by the accused, namely, the opposite party before me, after giving notice to the petitioner Basant Bhagat, the complainant, and the State and then after hearing the
arguments dispose of the application in accordance
with law.