Imam, J.:— This is an application under Article 227 of the Constitution, it appears that the petitioners were convicted by a Grain Cutchery constituted under the Bihar Panchayat Raj Act, 1947 (Bihar Act VII of 1948). The conviction purported to be under the Cattle Trespass Act. The Sub-divisional Magistrate, however, purporting to act under section 73 of the Act set aside the order of conviction and remanded to the Gram Cutchery the case for retrial.
It was contended on behalf of the petitioners that if the Sub-divisional Magistrate purported to set aside the order of the Grani Cutchery convicting, the petitioners under section 73(1) of the Act, then he had no jurisdiction to send the case back to the Gram Cutchery for retrial because under sub-section (2) where a Sub-divisional Magistrate makes an order under sub-section (1) the complainant may institute a case afresh in the court of the Sub-divisional Magistrate. It is best at this stage to quote sub-sections (1) and (2) of section 73 of the Act.
“73. (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 Sub-divisional Magistrate in respect of any case and the Munsif in respect of any suit may on the application of any party or 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 Cutchery and may for reasons to be recorded in writing—
(a) cancel the jurisdiction of the bench with regard to the suit or case; or
(b) quash any proceedings of the bench at any stage; or
(c) cancel any order or decree passed by the bench.
(2) When an order has been passed by a Munsif or the Sub-divisional Magistrate under sub-section (1) in respect of any suit or case, as the case may be the complainant or plaintiff, as the case may be, may institute the case or suit afresh in the court of the Sub-divisional Magistrate or a Munsif of competent jurisdiction.”
It will be seen, therefore, that section 73 makes no provision for retrial of a case by a Gram Cutchery where a Sub-divisional Magistrate or a Munsif has acted under sub-section (1). Sub-section (2) makes it perfectly clear that where a Sub-divisional Magistrate or a Munsif has acted under sub-section (1) it is open to the complainant or the plaintiff to institute a case afresh, but this time either before the Sub-divisional Magistrate or the Munsif and not the Gram Chechery. The reason for this provision seems to be indicated in sub-section (1). Sub-section (1) clearly states that where there has been a miscarriage of justice or where there is an apprehension of miscarriage of justice, power is given to the Sub-divisional Magistrate or the Munsif, as the case may be to call for the records from a Bench of the Gram Cutchery and, for reasons to be recorded to quash its proceedings or cancel any orders made by it. As I read this section, it seems to me that the intention of the Legislature was that where the Sub-divisional Magistrate or the Munsif was satisfied that there was a miscarriage of justice or the likelihood of miscarriage of justice in any case being tried or triable by a Gram Cutchery, then its proceedings could be either quashed or any order made by the Gram Cutchery could be set aside. Obviously, when any such proceeding is quashed or an order is set aside the intention was that the Gram Cutchery should no longer have jurisdiction to try that case. It is for this reason that the complainant or the plaintiff; as the case may be has been given the right to institute afresh a case either before the Sub-divisional Magistrate or the Munsif. I am not concerned in this particular case as to whether the reasons given by the Sub-divisional Magistrate establish the position indicated in sub-section (1) of section 73. He had, however, specifically stated that he was setting aside the order of the Gram Cutchery under section 73 of the Act. I must accordingly read his order to mean that there was either a miscarriage of justice or there was an apprehension of miscarriage of justice in his mind.
The question which now arises is as to what are the powers of this court in rectifying an order made by the Sub-divisional Magistrate which is entirely illegal having regard to the provisions of section 73(2). I must regard the order of retrial by the Gram Cutchery made by the Sub-divisional Magistrate as being an order without jurisdiction and such being the position, I am satisfied that under the power of superintendence under Article 227 of the Constitution this court can intervene. The power of Superintendence of this Court would be meaningless if it did not carry with it the jurisdiction to set aside an order of a court or Tribunal which had passed the order without jurisdiction. I would accordingly allow the application and set aside that part of the order of the Sub-divisional Magistrate whereby he ordered the case to be retried by the Gram Cutchery. The order of conviction having been set aside by the Sub-divisional Magistrate, the only course which the complainant in the case can take is that indicated in sub-section (2) of section 73 of the Act.
Misra, J.:— I agree.
S.H
Application allowed.