IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No.296 of 2010 Date of decision: 25.10.2010 Purshotam Lal …. Petitioner Versus Prakash Chand & anr. ….. Respondents Coram: The Hon’ble Mr. Justice Deepak Gupta, J. Whether approved for reporting? Yes For the petitioner: Mr.Narender Sharma, Advocate. For the respondents: Mr.Sandeep Chauhan, Advocate for respondent No.1. _____________________________________________ Deepak Gupta, J.(Oral) 1. This petition is directed against the order passed by the learned Judicial Magistrate, 1st Class, Court No.2, Ghumarwin, District Bliaspur dated 5.5.2010 whereby the appeal filed by the petitioner under Section 67 of the H.P Panchayati Raj Act , 1994 (hereinafter referred to as the ‘Act’) has been rejected and a fine of Rs.5/- imposed upon the appellant for his non-appearance before the Gram Panchayat has been upheld. 2 2. For the purpose of this petition, it is not necessary to give all the facts. It would suffice to mention that Parkash Chand, respondent filed a complaint against the present petitioner, Purshotam Lal before the Gram Panchayat, Bhapral, Tehsil Ghumarwin, District Bilaspur. Notice of this complaint filed by the respondent No.1 was issued to the present petitioner. The petitioner received the notice. He sent a letter to the Panchayat that he is moving an application under Section 43 of the H.P Panchayati Raj Act before the concerned Magistrate for transfer of the case and therefore, further proceedings in the matter be stayed. In fact, such application filed by the petitioner was allowed by the concerned Magistrate but that fact has no relevance to the case. 3. The question which arises in this petition is whether the Panchayat has the jurisdiction to impose a fine on a party who does not appear before it despite receipt of summons issued by the Panchayat? 4. Section 64 of the Act deals with the situations when the accused fails to appear before the Panchayat. It reads as follows:- 3 64. (1) If the accused fails to appear or cannot be found, the Gram Panchayat shall report the fact to the nearest Magistrate. (2) The Magistrate shall, on the receipt of a report under sub-Section (1), issue a warrant for the arrest of the accused and shall direct by an endorsement on the warrant that if such person executes a bond with sufficient sureties for his attendance before himself in the manner provided by Section 7 of the Code of Criminal Procedure, 1973, he shall be released from custody. (3) When the accused appears before the Magistrate he shall direct him to execute a bond with or without sureties to appear before the Gram Panchayat, Pradhan or Up-Pradhan or any Panch on such date as he may direct and thereafter to continue to appear before the Gram Panchayat as directed by such person or the Gram Panchayat. (4) On his failure to execute such bond the Magistrate shall order that the accused be produced in custody before the person mentioned in sub-section (3) or the Gram Panchayat on such date not more than fifteen days later as he may direct. (5) If the accused fails to appear before the Gram Panchayat after executing a bond under sub- section (3), the Gram Panchayat shall report the fact to the Magistrate before whom the bond was executed, and such Magistrate before whom the bond was executed, and such Magistrate shall proceed in accordance with the provisions of Chapter XXXIII of the Code of Criminal Procedure, 1973.” 4. A bare reading of Section 64 of the Act shows that if the accused fails to appear before the Panchayat 4 despite service or cannot be found, i.e. he is absconding then the Gram Panchayat has to report this fact to the nearest Magistrate in terms of Section 64(1). Thereafter, it is the Magistrate who has the authority to issue warrants of arrest of the accused and it is only the Magistrate who can direct that if such person executes a bond with sufficient sureties for his attendance, he shall be released from custody. 5. Under Section 64(3) of the Act, when the accused appears before the Magistrate, the Magistrate can direct the accused to execute a bond with or without sureties to appear before the Gram Panchayat or such Officer for the Panchayat as may be directed. In case the accused fails to execute a bond then the Magistrate can direct that the accused be produced in custody before the concerned Panchayat or Officer. 6. Even in a case when the accused fails to appear before the Gram Panchayat after executing a bond under sub section (3), all that the Gram Panchayat can do is to report the matter to the Magistrate before whom the bond was executed and the Magistrate alone can take further action. 5 7. Therefore, it is apparent that when a person is arrayed as an accused, the Gram Panchayat has no authority either to order his arrest, or even to direct him to furnish bail bonds. Such authority lies only with the concerned Magistrate. 8. It appears that the Gram Panchayat purported exercise jurisdiction which it felt it could exercise under Section 66 of the act which reads as follows:- 66. If any person who is summoned by a Gram Panchayat by a written order to appear, to give evidence or to produce any document before it, willfully disobeys such summons or notice or order, the Gram Panchayat may make a complaint to the Magistrate having jurisdiction and the said person shall be punishable with fine which may extend to twenty five rupees: Provided that no women shall be compelled to appear in person before the Gram Panchayat, and she may be examined on commission in the manner prescribed: Provided further that if a document is produced in obedience to a summon issued under this section, the Gram Panchayat shall cause the document to be copied, mark the copy, after comparing with the original, to be true copy and return the original document to the person producing the same.” 9. There can be no doubt that Section 66 provides that a fine upto Rs.25/- can be imposed on a person who does not appear before a Gram Panchayat 6 despite written order to appear but a reading of this Section clearly shows that it is not the Gram Panchayat which can impose the fine. In case a person who is summoned by a Gram Panchayat by a written order to appear to give evidence or to produce any document before it, willfully disobeys the summons of the Panchayat then the Panchayat has to report the matter to the Magistrate and if the said Magistrate finds that the person who has not put in appearance cannot give any reasonable explanation for his non appearance then the Magistrate can impose a fine upto Rs.20/-. 10. Sections 64 and 66 of the Act operate in two different fields. Section 64 of the Act relates to non- appearance of the accused like in the present case and Section 66 deals with persons who are required to give evidence before the Gram Panchayat and do not appear before the Gram Panchayat despite issuance of summons. However, as is apparent from the reading of both the Sections, the Gram Panchayat is not vested with any authority to impose a fine under any of the two sections and the fine, if any, can only be imposed by the concerned Magistrate. 7 11. In view of the above discussion, I find that the learned Court below has gravely erred in dismissing the appeal filed by the appellant. The Gram Panchayat had no jurisdiction whatsoever to impose the fine and the learned Trial Court did not even look into the relevant provisions of the Act while deciding the appeal. 12. In view of the above discussion, the petition is allowed. The order of the learned Judicial Magistrate 1st Class, Court No.2, Ghumarwin, District Bilaspur in case No.4/10 of 2008 dated 5.5.2010 and the order imposing a fine of Rs.5/- passed by the Gram Panchayat, Bhapral, Tehsil Ghumarwin, District Bilaspur dated 5.9.2008 are quashed and set aside. No order as to costs. October 25, 2010 ( Deepak Gupta ) (m) Judge