(1) The Nagpur Corporation has imposed octroi tax under section 114 (1) (e) of the City of Nagpur Corporation Act, 1948. The Corporation filed a complaint which was received by the Judicial Magistrate, First Class, Nagpur, on 1-9-1959 against the applicant. Paragraph I of the complaint stated that the applicant took delivery of a new truck outside the octroi limits after the Kamptee Road that the truck was for immediate export to Kelzar and obtained a transit pass on the same day. After having the truck registered with the Regional Transport Authority the applicant took the truck to Exit Outpost No.8 on the Wardha Road, Surrendered the transit pass there and then went outside the octroi limits with the truck. The applicant is then alleged to have brought back the truck within the octroi limits. Before doing so, however he is alleged to have changed the temporary number plate and fixed on the truck the number place with the registration number issued by the Regional Transport Authority on the day. The Octroi Inspector questioned applicant when the truck was brought back within the octroi limits as to whether he had paid the octroi duty in respect of the truck but the applicant declared that the truck was going to Kelzar and that it was to be stationed t Kelzar. The applicant is also alleged to have stated that he had a garage for the truck at that place.
(2) It is then stated that on subsequent occasions the applicant brought the said truck within the octroi limits of the City of Nagpur for being used within the Corporation limits but no duty was paid. It was also alleged that the applicant has his residence or business accommodation in the City of Nagpur limits and that he had no business accommodation at Kelzar revealing that the applicant had no residential of business accommodation outside the City limits of Nagpur. It was then stated that the applicant had given a false declaration with a view to defraud the Corporation of its octroi duty payable on the truck.
(3) On receipt of the complaint, the Magistrate seems to have decided to try the case as a summons case. Under section 242 of the Code of Criminal Procedure when the accused appears of is brought before the Magistrate, the Magistrate is required to state to the accused the particulars of the offence. I do not find from the record any such particulars which the Magistrate may have stated to the accused. It is only mentioned in the order-sheet of 13-1-1960 - this is probably not in the hand-writing of the Presiding Officer at all - that the particulars of the offence are explained to the accused and that he pleads not guilty. Very probably this order sheet is written by the clerk attached to the office of the Magistrate. It is desirable that the Magistrates must bear in mind that the requirement of the law under section 242 of the Code of Criminal Procedure is performance of a judicial act. The law enjoins that the particulars of the offence have to be stated to the accused by the Magistrate and the record must show what were the particulars which were explained or stated to the accused by the Magistrate. This requirement is not a formality. It is essential in the case of trials held by summons procedure that the accused must know what is the charge that he has to meet. There is no framing of charge in summons trials and the only opportunity the accused has to know what the accusation against him is by the statement of the particulars which the Magistrate is in law bound to explain to the accused. In my opinion, the Magistrates must bear in mind this requirement of the law in summons cases and non-compliance thereof is likely to result in serious prejudice to one side or the other. The facts of this very case reveal the necessity of strict compliance with this provision.
(4) The complaint made by the Corporation in this case apparently referred to two kinds of evasions or offences against the accused; one was introduction or re-introduction of the truck after changing the number place within the Corporation limits on 20-2-59 after surrendering the transit pass but without the payment of octroi duty on that day and the second accusation against the accused in the complaint was that even on subsequent dates the accused brought the truck and used it within the Corporation limits, thus making himself liable for payment of octroi duty on the truck for such user within the Corporation limits.
(5) At the trial, the Corporation called in the witness-box the Octroi Inspector and one of its peons to depose as to the actual incident which happened on 20-2-59. It also examined certain other witnesses such as P. W. 4 and P. W . 6 which stated that they saw the truck belonging to the accused standing on the road within the Corporation limits and that the truck carrying goods did enter the Corporation limits as would appear from the entries in the Registers at the Octroi outposts showing that the persons accompanying this truck with goods had paid the octroi duty in respect of the goods carried in the truck.
(6) The learned Magistrate however seems to have confined the inquiry or understood the prosecution to be only with respect to the incident of 20-2-1959. In paragraph in of his judgment the learned Magistrate observed as follows :
'Thus in the result, I find, that the evidence on the record proves that the accused on the date of incident brought again the newly purchased truck by him within the limits of the city of Nagpur Corporation with the intention to defraud the Corporation of the octroi duty payable on that truck.
Thus, even though the Magistrate referred to the other offence on which the prosecution relied to show that on subsequent occasions the truck had entered the Corporation limits and had been brought in for use by the accused, such acts were not the subject-matter of the inquiry or the charge. In view of the finding in paragraph 10 the learned Magistrate convicted the accused of the offence under section 152 of the matter imposed fine of Rs.2,000/- on the accused.
(7) The accused challenged his conviction and sentence before the appellate authority in the Sessions Court. The learned Additional Sessions Judge, Nagpur, upheld the finding of the trial Court that on 20-2-1959 the accused was proved to have brought in the truck a second time within the Corporation limits and admittedly no tax was paid on the truck and therefore the learned judge held that the accused had committed a technical offence. The learned Judge also observed in paragraph 11 of his judgment that there was no evidence whatever that though the registered address of the accused was Kelzar, he was plying the truck for gain within the limits of the Nagpur Corporation. The learned Judge, therefore, holding that the offence proved was of a technical nature, reduced the amount of fine from Rs.2000/- to Rs.50/- only, though the maintained the conviction.
(8) The accused has challenged the orders of the authorities below before this Court. It is not necessary to go into the merits of the controversy as to what actually happened on 20-2-1959. It is obvious that the prosecution was initiated beyond the period of Limitation prescribed under section 382 (a) of the City of Nagpur Corporation Act. It is not disputed that the offence was committed on 20-2-1959 and the Corporation authorities were aware of the offence on that very day; yet the complaint was not filed till as late as 1.9.1959 that is, till full period of six months was allowed to lapse. Obviously, on this short ground the prosecution could not succeed even assuming that there was merit in its contention. I therefore allow the revision application, set aside the conviction and sentence passed on the accused and hold that the accused is entitled to be acquitted. The complaint was filed beyond time and the trial Court had no jurisdiction to entertain it.
(9) However, much of the time of this Court was taken up at one stage in considering whether the accused could not be held to be guilty on that evidence led by the prosecution that the accused had introduced the truck within the Corporation limits on subsequent dates and had used it within the Corporation limits without paying the octroi duty. It is found that so far as the Magistrate was concerned, he did not address himself to the inquiry into that aspect of the complaint even though it was mentioned in the complaint and some evidence was led in support of the accusation. So far as the appellate Court was concerned it gave its definite committed any offence by subsequent acts of introduction of the truck in the Corporation limits for the purposes of using it within the Corporation limits without paying the octroi duty. All this discussion could have been under control duty. All the discussion could have been under control if the learned Magistrate had taken care to make a record of the actual accusation which was explained to the accused and in respect of which the inquiry was held by the Magistrate. A mere formality of making a note in the order-sheet stating that the particulars of the offence were explained was not due compliance with the provisions of section 242 of the Code of Criminal Procedure which has led to this confusion and the controversy which could this confusion and the controversy which could have been avoided if the Magistrate had done his duty.
(10) Thus, the result is that the application is allowed and the accused is acquitted. The find, if paid, shall be refunded to the accused.
(11) Application allowed.