Malik, CJ.

[1] This case was referred to a Full Bench by a learned Single Judge, as in his view, an important question of law arose for decision which was likely to arise in other cases.

[2] A complaint was filed by one Sumaroo against Roop Narain and his two sons, Lachmi and Bhaggan, under certain sections of the Indian Penal Code. The Sarpanch constituted a Bench of five Panches whose names were Parshotam Dass, Chairman, Raghunath Prasad, Misri Lal, Harihar Prasad and Ram Lakhan. During the course of the proceedings, it appears that two of the Panches, Harihar Prasad and Ram Lakhan, were replaced by two new panches Bhagirathi and Ram Adhar Singh.

As regards Bhagirathi there is a paper on the file, paper No. 21 from which it appears that a report was made by Parshotam Dass, Chairman, and Misri Lal that Harihar Prasad was not in Banaras and that, therefore, some difficulty was felt in getting the quorum. On this report the Sarpanch passed an order that the only other panch available from the Gaon Sabha of one of the parties was Bhagirathi and, therefore, he was being appointed.

It was said by the learned counsel at the Bar that Ram Lakhan had fallen ill and he was replaced by Ram Adhar Singh. The fact that Ram Lakhan was replaced by Ram Adhar Singh is mentioned in the supplementary affidavit and it is not denied in the counter-affidavit filed on behalf of the complainant, but in what circumstances and on what date is not clear from the file.

[3] On the 3rd August, 1952, the three Panches originally appointed, that is, Parshotam Dass, Ragunath Prasad and Misri Lal and the two new panches, Bhagirathi and Ram Adhar Singh, delivered a judgment in the case. Bhagirathi gave a dissenting judgment and the other four decided in favour of the complainant and convicted the accused and sentenced them to pay various amounts as fine. There was a revision filed against that order in the court of the Sub-Divisional Magistrate, 1st Class, Banaras, taut the learned Magistrate dismissed the revision on the 26th of November, 1952.

[4] The only two points dealt with by him were, firstly, whether the charge was read out to the accused and, if not, whether any prejudice had been caused to the accused and, secondly, whether the Chairman was present on all the dates of hearing. The Magistrate held that the charge had been read out to the accused and that there was no satisfactory evidence that the Sarpanch had not attended on all the dates of hearing.

[5] The two points raised before the learned Magistrate were not taken before us. The point raised in this Court is that once the Panches have been nominated by the Sarpanch he cannot replace them by new Panches.

[6] Section 49 of the U. P. Panchayat Raj Act (Act No. XXVI of 1947) provides that after a case, suit or proceeding has been instituted the Sarpanch has to form a Bench consisting of five panches in accordance with the provisions of that section. The Sarpanch in this case did constitute a Bench of five Panches in accordance with the provisions of Section 49.

Section 77-A provides that "If any Panch appointed to a bench constituted under Section 49 for the trial of a case, suit or proceeding is absent at any hearing, the remaining Panches may, notwithstanding anything contained in this Act try the case, suit or proceeding provided, however, that at least three panches, including the chairman, are present and provided further that at least one of the panches present is able to record evidence and proceedings. The mere absence, therefore, of a panch does not affect the proceedings and it is possible for three Panches to continue the trial provided the Chairman and a panch who is literate enough to record the proceedings are available.

Rule 84-B, framed under Section 110 of the Act, provides that where there is disagreement among the Panches constituting a bench, and by reason thereof it is not possible for them to give a decision by the opinion of the majority, the Sarpanch may constitute another