MALIK, CJ. :- This is an application under Art. 227 of the Constitution for an appropriate order setting aside a conviction by the Panchayat Adalat of Mohabbatpur. The complainant was one Sonpal, resident of village Jonthri which is situate within the jurisdiction of the Gaon Sabha Mohabbatpur Labhna. He filed a complaint before the Panchayati Adalat Deohli against three persons, Mohar Singh, Pokhu and Badnu, also residents of the same village. The charges were under Ss. 323 and 447, Penal Code. The Sarpanch constituted a bench of five Panches, of whom only one belonged to Gaon Sabha Mohabbatpur Labhna while the other four belonged to some other Gaon Sabha or Gaon Sabhas. The Panchayati Adalat convicted the three accused under Ss. 323 and 447, Penal Code and imposed fines of Rs. 80/- and Rs. 70/- respectively on each of them. There was a revision application filed before the Sub-Divisional Magistrate under S. 85, U.P. Panchayat Raj Act, but the revision was dismissed and this writ application has been made against that order.

2. The case came before a learned single Judge, but by reason of some difference of opinion he referred it to a Division Bench for decision. We are concerned in this case mainly with two questions whether the Panchayati Adalat was properly constituted and had, therefore, the jurisdiction to convict the accused persons, and whether the fines imposed were within the limits laid down by law.

3. The first point arises in this way. Section 49/(1) U.P. Panchayat Raj Act (Act No. 26 of 1947) provides that

"The Sarpanch shall, for the trial of every case, suit or proceeding, form, a bench of five panches from the panel; provided that at least one of the panches shall be a person who is able to record evidence and proceedings."

Sub-Section (2) is as follows : "Every such Bench shall include one Panch who resides in the area of the Gaon Sabha in which the plaintiff of a suit or proceeding or the complainant of a case resides and likewise one Panch residing in the area of the Gaon Sabha in which the defendant or the accused resides, and three Panches residing in the area of the Gaon Sabha in which neither party resides; ......"

4. We have already said that in this case the complainant and the accused came from the same village. The Sarpanch had appointed one Panch from the Gaon Sabha within the jurisdiction of which the complainant and the accused resided. The contention was that it did not matter that the accused and the complainant were from the same village but there should have been two Panches in accordance with the provisions of the sub-section and only three outsiders could be appointed Panches from areas in which neither party resided. Brij Mohan Lall, J. had, in - Kuleshwar v. The State, Cri Revn No. 1322 of 1950, D/-15-05-52 (All) (A), in which there were four outsider Panches, if we may use that phrase, while only one Panch was from the common village of the accused and the complainant, held that the bench was not properly constituted. In a similar case, coming up before n Bench. - Hariher Tewari v. State, AIR 1952 All 489 (B), it was held that the fact, that there was only one Panch from the common village of the parties and four Panches were outsiders, was not a fatal defect and such a detect could be waived. This was the opinion expressed by one of us, while the other learned Judge decided the case on the facts that it was not established that there were as a matter of fact four outsiders on the bench of Panches.

In a third case - Shanker Lal v. Tuki Ram, Cri Misc Case No. 2756 of 1951, D/-5-9-1952 (All) (C), a Bench of this Court (Sapru and Bind Basni Prasad, JJ.) held that the objection as regards the constitution of the Panchayati Adalat on the ground that there were not two ranches one from the Gaon Sabha of the area within which the complainant resided and another from the Gaon Sabha of the area within which the accused resided, could not be entertained as no such objection was raised before th