Imam, J.

1. This is an application under Arts. 226 and 227 of the Constitution in the matter of a writ in the nature of certiorari. The petitioner was convicted by the Gram Cutcherry of Samayagarh for offence punishable under Section 504 and Section 506, Penal Code, and sentenced to pay a fine under each section. An appeal to the Full Bench of the Gram Cutcherry was dismissed. The Sub-divisional Magistrate, however, was moved presumabty under Section 73, Bihar Panchayat Raj Act 1947 (Act 7 of 1948). The Sub-divisioral Magistrate was of the opinion that there was no case made out under Section 504, and he set aside the conviction. He, however, upheld the conviction under Section 506, Penal Code.

2. The case of the complainant before the Gram Cutcherry was that the petitioner had sent his son Kedar Singh to the complainant with a slip bearing his signature asking him to send 10 seers of Khajoor. The complainant refused to supply as it was against the rules of the ration shop to give more than two seers of Khajoor to anybody. On this, the petitioners son Kedar Singh went back and informed the petitioner accordingly. The petitioner came and began to abuse the complainant. The petitioner ran after the complainant with brickbats but he was seized by other person standing there. Thereafter, the petitioner said that he would have killed the complainant but for the fact that his son was ill.

3. The petitioners case was that a false case had been instituted by the complainant. The complainant owed to the petitioner Rs. 600/-which he refused to repay on demand made by the petitioner, and in order to put pressure upon the petitioner the complainant began to abuse the petitioner as a result of which there was exchange of hot words in the course of which the complainant threatened to assault the petitioner with garasa. A totally false case had been brought against the petitioner in order to put pressure upon him.

4. I am not placing in the order of importance the points raised by the learned advocate for the petitioner. The first point that I will deal with is as to whether Section 506 was triable by a beach of the Gram Cutcherry under the Bihar Panchayat Raj Act. Section 62 of the Act specifically provides that notwithstanding anything contained in the Code of Criminal Procedure, 1893, and subject to the provisions of the Act, a Bench of the Gram Cutcherry shall have jurisdiction concurrent with that of the Criminal Court within the local limits of whose jurisdiction the Bench is situate for the trial of the offences mentioned in Clauses (a), (b), (c), (d) & (e). In Clause (a) which concerns the Indian Penal Code, Section 506 is clearly stated.

It was, however, argued that under Section 63 of the Act, a Bench of the Gram Cutcherry is only vested with the powers of a Magistrate of the third class. According to the Criminal Procedure Code, schedule 2 prepared under Section 28 of the Code, an offence under Section 506, Penal Code, is not triable by a third Class Magistrate. A Magistrate with second class powers is the lowest grade of Magistrate who can try such an offence. The submission of the learned Advocate is, in my opinion, erroneous because Section 62 of the Act gives jurisdiction to a Bench of the Gram Cutcherry to try cases punishable under Section 506.

Reliance, however, was placed on the words to the effect "and subject to the provisions of this Act" for the purpose of showing that as a Bench of the Gram Cutcherry was vested only with the powers of a Magistrate of the third class, such a Bench had no jurisdiction to try an offence under Section 506, Penal Code. I do not agree with this submission. The words on which reliance has been placed mean no more than this when read in the context of the words stated in Section 62, namely, that a Bench of the Gram Cutcherry shall have jurisdiction to try an offence under Section 506 subject to this that the Bench will be exercising the powers which are exercised by a Magistrate of the third class that is to say, on conviction the sentence can be no more than what a third class Magistrate could pass.

5. It was next contended that the Full Bench of the Gram Cutcherry must consist of 15 persons having regard to the provisions of Section 49 of the Act. The judgment of the Full Bench which dismissed the petitioners appeal shows that it was signed by only 10 panches. In the petition filed before this Court, it has nowhere been asserted that the appeal was not heard by the Pull Bench of the Gram Cutcherry consisting of the sarpanch and all the panches as required by Section 67. Merely because the judgment had been signed by ten of them and not by the others would not necessarily show that all the panches had not heard the appeal. Indeed nowhere in, the petition filed in this Court have any facts been stated to show that the judgment of the Pull Bench was not in accordance with the provisions of Section 67.

The argument was made, however, in Court. The judgment of the Full Bench no doubt shows that it has been signed only by 10 panches, and a very debatable question might well arise as to whether the appeal of the petitioner has been properly disposed of on account of the failure of all the panches to sign the judgment of the appeal Court. Normally one would suppose that the judgment of a Court of appeal should be signed by alt its members irrespective of there being dissenting views or not when such a judgment has not been signed by all the members of appeal Court, the question might well arise as to whether the appeal has been properly disposed of.

6. It was next contended that the trial before the Bench of the Gram Cutcherry was without jurisdiction as this Bench had not complied with the provisions of Section 58 of the Act and Rule 13(1) of the rules framed under Section 80 of the Act published in Bihar Gazette dated 23-5-1949, No. 7901-L-S-G. Section 58 of the Act requires a Bench of the Gram Cutcherry, while hearing a suit or trying a case under the provisions of the Act, in the case of a compoundable offence, to endeavour to bring about an amicable settlement between the parties and to do all such lawful things as it thinks fit for the purpose of inducing the parties to come to a fair and amicable settlement, and where such a settlement is brought about, the Bench shall record the same and give its decision accordingly.

Section 59 of the Act states that where a Bench of the Gram Cutcherry does not succeed in bringing about an amicable settlement under the preceding section, or otherwise takes up the hearing or trial of a suit or case, it shall make an enquiry, receive such evidence as it considers necessary and record its judgment and in the event of the members of the bench disagreeing, the decision of the majority shall prevail. Reading these two sections together, it would appear as if in a case arising out of a compoundable offence, which Sections 504 and 506 I. P. C. undoubtedly are a Bench of the Gram Cutcherry shall make an endeavour to bring about an amicable settlement, and if such a settlement is arrived at, it shall give its decision accordingly. Where there has been a failure to bring about amicable settlement, then it may commence to try the case.

Rule 13(1) of the rules framed under the Act states that if the Bench does not succeed in bringing about an amicable settlement between the parties, the Bench will proceed with the hearing of the suit or the case from day to day until the hearing thereof is finished. In exceptional circumstances, such as occasioned by the illness of the accused or absence of any material witness, the hearing of the case may be adjourned. This rule has obviously been framed under Section 80(2) (s), namely, the procedure to be followed by a Bench of the Gram Cutcherry in deciding suits and cases. Prima facie, reading the two sections and the rule, it seems to me that in a case arising out of a compoundable offence, it is the bounden duty of the Bench of the Gram Cutcherry to bring about an amicable settlement in the first instance before it can try the case. It is only on failure to so settle the case that it can be said that the Bench of the Gram Cutcherry has jurisdiction to proceed with the trial of the case.

Some question may arise on the words "or otherwise takes up the hearing" to mean that even if no attempt has been made to bring about an amicable settlement, a Bench of the Gram Cut-cherry has jurisdiction to proceed with the trial. I trunk, however, that it this were the proper interpretation to be given to these words, then there was no occasion for the preceding words in Section 59. Furthermore, the words "or otherwise takes up" may refer to cases arising out of a non-compoundable offence in which case the provisions of Section 58 would have no application. Furthermore, under Section 69 of the Act, a Magistrate or Munsif may transfer a case before him where it appears that such a case or suit is triable by a Bench of the Gram Cutcherry and that he is satisfied that such a suit or case is fit to be tried by the said Bench. When a case is so transferred, it would be taken up by a Bench of the Gram Cutcherry for trial, and such a case may be covered by the words "or otherwise takes up the hearing or trial of a suit or case".

The petitioner asserts in his petition on affidavit, which remains uncontroverted that the Bench of the Gram Cutcherry made no endeavour to bring about an amicable settlement between the parties as required by the provisions of the Act Sections 504 and 506 are compoundable offences, and, in my opinion. The Bench of the Gram Cutcherry should have acted in accordance with the provisions of Section 58 and Rule 13(1) of the rules framed under the Act. Failure to do so is, in my opinion, to proceed with the trial without having complied with the mandatory provision of the law arising under the Bihar Panchayat Raj Act.

The whole object of the provisions of Sections 58 and 59 appears to me to be that a Bench of the Gram Cutcherry in a case arising out of a compound-able offence must bring about an amicable settlement, if it can, in the first instance and not to try the case straightway. The purpose behind these provisions was that the panches forming the Bench of the Gram Cutcherry would bring about harmony and peaceful relations which were so essential for the development of community life in villages. 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.

7. Another submission which was made was that the provisions of Section 57 of the Act had not been complied with. It appears that according to the petition, the complainant named a panch and the petitioner named a panch, but that individual refused to be a panch in the case. The petitioner then named another person as panch who also refused to be a panch. Upon this, the sarpanch named one Harihar Gope to be a panch. It is argued that under Section 57, the petitioner has the right to nominate a panch to be a member of the Bench of the Gram Cutcherry to try the case. Although the two persons nominated by him had refused to be panches, the sarpanch had no jurisdiction to nominate a person who had not been nominated by the petitioner.

There is, however, a very important proviso to Section 57, viz., proviso (i), which states that if any party does not nominate a panch within such time as may be prescribed, the sarpanch shall nominate a panch from the panel. This obviously means that within a certain time the parties have to nominate their panches, and if within the prescribed time they have not done so, the sarpanch shall have the authority to nominate a panch from the panel. The petitioner failed to persuade two persons to accept his nomination. It was open to him to proceed to nominate another within the time allowed. If he did not do so, obviously the sarpanch was authorised to nominate one. It is not asserted in the petition that the sarpanch nominated Harihar Gope before the time had expired within which the petitioner could have nominated another person as a panch. In my opinion, this contention on behalf of the petitioner must be rejected.

8. It was also argued that the facts alleged by the complainant, even if accepted, do not disclose an offence punishable under Section 506, Penal Code. In my opinion, this argument has no valid foundation. Whether the facts alleged by the complainant are true or not is not a matter with which I am concerned in this case. The facts alleged, however, make it quite clear that the petitioner so abused the complainant that he began to run away and was pursued by the petitioner with a brickbat in his hand. It was only the intervention of others that prevented the petitioner going any further. His conduct, however, did amount, in my opinion, to a threat which caused an alarm to the complainant leading him to apprehend that he might be assaulted. This, in my opinion, was clearly criminal intimidation.

9. Having regard to the view I take concerning the provisions contained in Sections 58 and 59 of the Act and Rule 13(1) of the rules framed under the Act, I am of the opinion that the trial of the petitioner was without jurisdiction, and I would accordingly quash his conviction and sentence.

Misra, J.

10. I agree.