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 Section 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 Section 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 Articles 226 and 227 of the Constitution in a matter like this; for there being remedy, such as appeal from the order of the Gram Cutchery to the Full Bench, this Court should not interfere with the order of the Gram Cutchery.

4. So far as the first point is concerned, in my opinion, it is not correct to say that because the accused has acquiesced in a proceeding which has ended in his conviction and sentence, by reason of his acquiescence this Court should not interfere with such a conviction and sentence even though the court which convicted and sentenced the accused had no jurisdiction. In my view the accused is not bound to say anything. He may even make a false statement but no inference can be drawn against him on this account. There is no question of the accused acquiescing in a criminal trial. He is brought before the bar of the Court, he is tried, either he is convicted or acquitted; the question of acquiescing in my opinion does not arise at all. Much less then the question of conferring jurisdiction by reason of this arises. It is now well-settled that no party can confer jurisdiction on a Court or take away its jurisdiction, Mr. Bajaj was not able to draw our attention to any ruling where in a criminal case the accused is said to have acquiesced in the trial and when he has been convicted and sentenced by that Court in that trial, he is debarred from moving this Court and seek redress under Article 227 of the Constitution.

Mr. Bajaj, however, has cited the case of --Gandhinagar Motor Transport Society v. State of Bombay : AIR 1954 Bom 202 [LQ/BomHC/1953/80] (A), in order to show that where a party acquiesces, he by his acquiescence cannot be permitted to raise any objections so far as the case has been heard by that particular court. That was a case which has nothing whatsoever to do with Article 227 of the Constitution. That was a case not even concerned with courts or tribunals. Article 227 of the Constitution gives this Court power of superintendence over all courts and tribunals and it would not, in my opinion, apply to a case like the Bombay case which has no concern with a tribunal or a court. Article 227 of the Constitution has made it definitely clear that the powers of superintendence are over all courts and tribunals. In my opinion, therefore, the Bombay case has no application to the facts of this case. Furthermore, that particular Bombay case was not dealing with a criminal case. It was concerned with a civil dispute and that is a further ground, in my opinion, for not accepting the Bombay ruling so far as this particular case is concerned.

5. Mr. Bajaj has drawn our attention to an English case --Rex v. Williams; Phillips, Ex parte (1914) 1 KB 608 . That was a case in which the accused is said to have offended the provisions of Section 14 of the Bread Act of 1836 and the case was being tried by three justices of the peace, one of whom was remotely connected with the bread trade. It was submitted that the trial was illegal or voidable; yet their Lordships in that case did not deem that to be a ground for interfering with the order passed. In my opinion, citing an English case is always dangerous unless one is definitely sure of all the facts and circumstances and the law concerning that case. In England, as far as I am aware, there is no statutory law conferring power of issuing writs on the Courts. The power of issuing writs by the English Courts seems to have grown as it were by way of history and therefore it cannot be said that this ruling of the English Court is one that applies to the facts of this case.

Furthermore, Article 227 has no concern with the writs at all. It is concerned with providing the High Courts with power to superintend over the work of the courts and tribunals. It is Article 226 which is concerned with the writs and it is necessary, in my opinion, to keep the two articles distinctly in mind. There may be cases where both these articles may apply and there may be cases where only one of them may apply. It cannot be said that whenever there is a case under Article 227 of the Constitution, Article 226 must necessarily apply. Mr. Bajajs submission is that where a party has a remedy, he has no right to move this Court for a writ. It is now well-settled that where a party has a remedy, that party cannot move this Court for a writ and to that extent Mr. Bajajs submission, to my mind, is valid and applies to this case in so far as the power oft this Court under Articles 226 is concerned. The accused did have a right of appeal to the Full Bench of the Cutchery. He did not file appeal. The remedy was there but he did not avail himself of it. His prayer for issuing a writ under Article 226 must, in my opinion, be rejected on this ground. But that would not mean that this Court cannot interfere with the order of the court below by virtue of the powers conferred on this Court by Article 227 of the Constitution.

6. So far as Article 227 of the Constitution is concerned, it is not in every case of legal error that Court would interfere. It will interfere where there has been a substantial ground for interference, such as, jurisdiction, Mr. Bajaj did submit that as the accused had acquiesced, so the court which tried him could try him, though it may not have jurisdiction. In my opinion the question of jurisdiction does not depend upon the attitude adopted by the parties. It is a question of fact whether the Court has jurisdiction or it has not. If it has jurisdiction, then it has jurisdiction to try the case and the order passed by it must be deemed to be a legal order. If it has no jurisdiction, then the order passed by the Court must be deemed to be illegal and without jurisdiction and therefore it must be set aside.

Mr. Bajaj was not able to point out to us a single ruling to show that when the accused has acquiesced in his trial before a certain court and that when it is found that that court had no jurisdiction to try him, this Court cannot interfere with the conviction and sentence passed by that court merely on the ground that there has been acquiescence. On the contrary, there are rulings to show that where there has been no jurisdiction to hear or try a case, then the order of such a court must be deemed to be such a substantial error as would justify the High Court to interfere with such an order under Article 227 of the Constitution. There is a case of our own Court which is not yet reported. It is -- Shah Mohammad Umaid v. Ramcharan Singh, (Since reported in AIR 1954 Pat 225 [LQ/PatHC/1953/135] where this very question, namely, when High Court can interfere under Article 227 has been dealt with. His Lordship Mr. Justice Sinha while delivering judgment in that case has referred to certain rulings of some of the High Courts and has been pleased to observe :

"Roe, J., one of the Judges constituting the Bench, upon a review of the previous cases, made the following observation which is worthwhile quoting :

the power of superintendence is not a legal fiction whereby a High Court Judge is vested with omnipotence. It is a term having a legal force and signification. It is the power by which English Courts interfere by prohibition and mandamus. It is confined to cases in which the Court has acted without jurisdiction, or in excess of jurisdiction or has refused to exercise a jurisdiction vested in it by law. The High Court will not interfere merely because there has been an irregularity in the proceedings. It will interfere if the irregularity had been so serious that one of the parties has suffered prejudice. By prejudice is meant disability to lay before the Court that partys version of the facts of the case and the law to be applied. It will not interfere with my decision arrived at after a fair trial however erroneous in law or fact that decision may appear to be."

7. There is a ruling of the Calcutta High Court, namely, -- Dalmia Jain Airways Ltd. v. Sukumar Mukherjee : AIR 1951 Cal 193 [LQ/CalHC/1950/243] (SB) (D). It is a Special Bench decision of that Court and it has been observed by Harries, C. J. that though under Article 227 of the Constitution, the High Court has a right to interfere with decisions of Courts and tribunals under its power of superintendence, that right must be exercised most sparingly and only in appropriate cases. In general words, the High Courts power of superintendence is a power to keep subordinate Courts within the bounds of their authority, to see that they do what their duty requires and that they do it in a legal manner. It is not a power given to correct errors, otherwise it would be tantamount to a right to entertain appeals on law and fact. The right should be exercised only in cases where the Courts have clearly done something which they were not entitled to do.

8. I would now refer to some rulings of this Court. The first that I would refer to is the case of -- Sheonarain v. Lachmi Narain : AIR 1953 Pat 339 [LQ/PatHC/1952/134] (E). At p. 340 Imam, J. (as he then was) observed as follows

"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 Cutcherry made by the Sub-Divisional Magistrate as being an. order without jurisdiction and such being the position, I am satisfied that under the powers 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."

9. The next ruling that I would refer to is the case of -- Nivas Singh v. Amar Sao : AIR 1953 Pat 188 [LQ/PatHC/1952/150] (P). At p. 190 Imam, J. (as he then was) observed as follows :

"I am inclined to the view that where a Bench of the Gram Cutcherry has not complied with the provisions of Section 58 and has proceeded to try the case straightway, it has proceeded without jurisdiction."

That being the position his Lordship quashed the proceedings of the court below. The next ruling that I would refer to is the case of -- Shoukat Ali v. The State : AIR 1954 Pat 194 [LQ/PatHC/1953/112] (G). It is observed that the Gram Cutchery under the Panchayat Raj Act can assume jurisdiction to try only offences which they have been empowered to try under Section 62 of the Act. If the facts found do not constitute any of those offences, they cannot assume jurisdiction to try such a case, and it such a case is tried and an order is passed, that order would be without jurisdiction. It was further observed that the High Court in such a case would interfere and set aside the order because it is one which has been passed by a tribunal which is without jurisdiction altogether as a result of its grave dereliction of duty and flagrant abuse of fundamental principles of law.

10. It is thus clear that where the court below is Gram Cutchery and had passed an order without jurisdiction, then it is open to this Court to interfere by virtue of the provisions under Article 227 of the Constitution. I have already stated that Mr. Bajaj never questioned the fact that the order of the Gram Cutchery was without jurisdiction. I have before stated that if there has been any acquiescence on the part of the accused to be tried by the said Gram Cutchery, that would in no way alter the fact that the Gram Cutchery had no jurisdiction whatsoever. I am, therefore, of the opinion that the order of the Gram Cutchery was without jurisdiction and the conviction and sentence passed must be set aside and the proceedings be quashed. There is one other matter that still remains to be considered, namely, whether the learned Sessions Judge could make reference in a case like this to this Court under Section 438, Criminal P. C. As I have already stated, this Court has power to interfere only because of the power conferred on this Court by virtue of Article 227 of the Constitution Section 438 Criminal P.C., cannot possibly be said to cover a case of this kind. The reference therefore is rejected and the application is allowed.

Sinha, J.

11. I agree that the application should be allowed, proceedings quashed and the conviction and sentence of the petitioners set aside. Mr. Bajaj has conceded that this Court under Article 227 of the Constitution has ample power of judicial interference with the orders and judgments of Courts and tribunals within the jurisdiction of the High Court. What the learned counsel says is that this Court ought not to exercise that power in favour of the petitioners for two reasons. One he says is that because the petitioners acquiesced in the order of the Sub-Divisional Magistrate transferring the case to another Gram Cutchery and also because they acquiesced in being tried by that Gram Cutchery, and, secondly, because they had a right of appeal against the order of the Gram Cutchery to a Full Bench of the Gram Cutchery and not having availed themselves of this remedy they cannot now be permitted to seek their remedy under Article 227 of the Constitution.

The answer to the first point is that mere acquiescence cannot confer jurisdiction on Courts or tribunals. Mr. Bajaj has referred us to certain cases from England and some other courts in India. Those cases, in my opinion, were not cases where the question of jurisdiction was involved, namely, where the Court or tribunal had failed to exercise jurisdiction, had exceeded jurisdiction or had acted without jurisdiction; nor were those cases where the power of the High Court under Article 227 of the Constitution or other similar statute was involved. The power under Article 227 of this Court is very wide and this court will be stultifying itself if a certain order passed without jurisdiction by courts and tribunals is brought to the notice of the Court and the Court were to acquiesce in that order. In my judgment, therefore, no amount of acquiescence would cure the defect of jurisdiction.

So far as the second point is concerned it is enough to say that the Gram Cutchery which tried the petitioners having no jurisdiction in the matter the Pull Bench of that Gram Cutchery equally could have had no jurisdiction to hear the appeal and decide the matter on appeal.