A trial before a Gram Cutchery can commence only after an attempt to bring about a settlement under Section 58 of the Bihar Panchayat Raj Act, 1947, and a conviction cannot be based solely on the statements of the complainant and the accused taken before the settlement attempt or on an enquiry report.

Untwalia, J. - All the six petitioners have been convicted by Lari Gram Cutchery, district Hazaribagh, under Sections 426 and 153 of the Penal Code. Each of the petitioners 1 and 2 has been sentenced to pay a fine of Rs. 10/- and each of the remaining petitioners 3 to 6 has been sentenced to pay a fine of Rs. 5/-. Each of them has been directed to undergo three days simple imprisonment in default of payment of fine.

2. A complaint was filed by Budhan Sonar, opposite party no. 1, on 28-3-1967. On 4-4-1967, the petitioners appeared before the Gram Cutchery, and as the ORDER :of that date shows, nominated one Mahesh Mahto as a Panch on their behalf in accordance with Section 57 of the Bihar Panchayat Raj Act, 1947, hereinafter referred to as the 'Act', read with Rule 25 of the Bihar Gram Cutchery Rules, 1962, hereinafter referred to as the 'Rules'. I ought to have stated that on the lodging of the complaint, the Sarpanch asked two Panches named in the ORDER :-sheet to make a preliminary enquiry. It was only after the submission of the enquiry report that notices were issued to the petitioners.

3. On 22-4-1967, the complaint was examined. The petitioners were also examined and their statements were recorded. The ORDER :-sheet of that date mentions the fact of taking of the statement of the complainant and the statement of the accused first and then mentions that they were asked to amicably settle the matter. The ORDER :dated 22-8-1967 of the Gram Cutchery shows that the Sarpanch nominated one Kitku Mahto as the Panch, stating in the ORDER :-sheet that the accused had refused to nominate their Panch. No fresh evidence seems to have been taken thereafter and the accused were convicted by ORDER :of the Gram Cutchery passed on 29-8-1967. They moved the Sub-divisional Magistrate of Hazaribagh under Section 73 of the Act, but the petition was rejected on the ground of limitation.

4. Two points have been raised on behalf of the petitioners by their learned counsel Mr. Braj Kishore Prasad No. II (i) that Kitku Mahto was nominated a Panch by the Sarpanch in violation of the provisions of Section 57 of the Act, and, (ii) that the trial commenced without complying with the requirements of Section 58 of the Act.

5. Ordinarily, this Court would be reluctant to exercise its power of superintendence under Article 227 of the Constitution when a person aggrieved has failed to avail of the remedy provided in Section 73 of the Act. In this case, the petitioners, as is the view of the Sub-divisional Magistrate, Hazaribagh, did not avail of this remedy in time. On reading Section 73 (1) of the Act, however, I am not quite sure whether application has got to be filed within sixty days from the date of the ORDER :complained against. What the section requires is that the Sub-divisional Magistrate may, on the application of any party or of his own motion, call for the record from a bench of the Gram Cutchery within sixty days from the date of an ORDER :. The time limit imposed by the section seems to be upon the exercise of the power by the Sub-divisional Magistrate, which, according to well known canons of interpretation of statutes, should be held to be directory, and not mandatory. Be that as it may, without expressing any final opinion in that regard, I think, this is a fit case where the ORDER :of the Gram Cutchery should be quashed, even though the remedy under Section 73 of the Act was not availed of by the petitioners in time.

6. In several cases decided by this Court it has been pointed that the trial can commence only when a bench of the Gram Cutchery does not succeed in bringing about an amicable settlement under Section 58. In the instant case, this infirmity is there, in that, no attempt was made for bringing about settlement before the commencement of the trial. Moreover, the ORDER :as recorded in the ORDER :-sheet of 22.4.1967, merely shows that the parties were asked to settle the matter. It does not further indicate that the bench of