A court or tribunal cannot acquire jurisdiction by the acquiescence of the parties.

Naqui Imam, J.

1. These two cases have been heard together, namely, Criminal Reference No. 11 of 1954 and Criminal Miscellaneous No. 138 of 1954. Both these cases are concerned with the same matter so this judgment will govern both these cases. Criminal Reference No. 11 of 1954 was referred to this Court by the learned Sessions Judge of Saran and Criminal Miscellaneous No. 138 of 1954 was filed in this Court under Articles 226 and 227 of the Constitution.

2. The prosecution case in short appears to be that Jirakhan Sah, a resident of village Sukurwalia within the Mirganj police station had instituted a criminal case under Sec.358, Penal Code, against Nakchhed Bhagat, Harihar Prasad and Keshwar Bhagat, all residents of the same village, in the court of the Kuar Bathua Gram Panchayat, these persons being residents within the jurisdiction of this Panchayat. It is alleged by the prosecution that Chandradeo Sah, son of the opposite party, was insulted and abused. The Sub-Divisional Magistrate of Gopalganj was moved and it is said that the learned Sub-Divisional Magistrate withdrew the case from the court of the said Panchayat and transferred it to the Bathua Bazar Panchayat Cutchery for disposal.

This latter Panchayat then tried the case and by its order dated 7-5-1953 convicted the petitioners under Sec.358, Penal Code, and sentenced them to pay a fine of Rs. 11/-. After this conviction the petitioners filed a petition before the learned Sub-Divisional Magistrate of Gopalganj under Section 73, Bihar Panchayat Raj Act, 1347, with a prayer that the order of conviction should be set aside. It appears that several adjournments were given and ultimately the learned Sub-Divisional Magistrate dismissed the petition on 18-11-1953 because the petitioner was absent on that date.

3. The point raised on behalf of the petitioners is that the learned Sub-Divisional Magistrate was not empowered under the Bihar Panchayat Raj Act to transfer a case from one Gram Cutchery to another and that because the learned Sub-Divisional Magistrate had done so, the transferee Gram Cutchery had no jurisdiction to dispose of the case and convict the petitioners and that the conviction of the petitioners therefore was without jurisdiction and that this Court should set aside the conviction and sentence and quash the proceedings. Section 70, Bihar Panchayat Raj Act, 1947 , has provided as follows :

"The Sub-Divisional Magistrate or the Munsif may, of his own motion or on information received, withdraw any case or suit pending before a bench of the Gram Cutcherry, if for reasons to be recorded by him in writing he is of opinion that the case or suit is complicated or not otherwise proper to be tried or heard by the bench and may try or hear the case or suit either himself or transfer it to another competent Magistrate or Munsif for disposal."

It is clear from the provisions of this, section that though the Sub-Divisional Magistrate or the Munsif, as the case may be, has power to transfer a case from a Gram Cutchery, but his powers of transfer are limited inasmuch as the Sub-Divisional Magistrate or the Munsif can only transfer such a case to a Magistrate or a Munsif and not to another Gram Cutchery. It is thus clear that when the learned Sub-Divisional Magistrate had transferred this case from one Gram Cutchery to another, such a transfer was illegal as the learned Sub-Divisional Magistrate had no jurisdiction to do so. Mr. Bajaj appearing for the opposite party has conceded this; in other words, he has admitted that the order of the learned Sub-Divisional Magistrate transferring the case from one Gram Cutchery to another was beyond his jurisdiction.

But he submitted that because the petitioner had acquiesced in being tried by the transferee court, it was not now open to him to question the conviction and sentence and therefore the conviction and sentence must be maintained. He further submitted that it is not usual for this Court to interfere under Article