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Seth Ram Partab Marwari Vs. Emperor - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in55Ind.Cas.302
AppellantSeth Ram Partab Marwari
RespondentEmperor
Excerpt:
u.p. municipalities act (ii of 1916), section 50, 307 - notice--essentials of valid, notice. - - even then it would be necessary to consider whether the irregularities complained of are such as to give cause for an apprehension that the individual prosecuted for the offence or the public would be liable to injury, but when the irregularities are so many as have taken place in the trial and the proceedings antecedent to trial as in the present case a court cannot overlook them......to point out that the notice made punishable by this section must be a legal notice and a notice issued by some authority competent to issue such notice. it could never be contemplated that a notice which the law authorises the board or the chairman of the board to issue can cover a notice issued and signed, say, by a daftari or a peon in a municipality which the board or the chairman may or may not have seen. in the present case the intention to issue a notice by the board was contemplated and even ordered to be sent. the paper, however, containing the notice when it reached the person concerned and charged with disobedience of it, was, as a matter of fact, issued and signed by the secretary, and there was nothing to show on the face of it that the municipal board had.....
Judgment:

1. This is an application for revision of an order passed by the Additional Sessions Judge of Mirzapore, whereby he dismissed the appeal and upheld the order of Babu Ramji Das, Magistrate of the First Class, sentencing the applicant to a fine of Rs. 160. Several grounds are taken. The learned Counsel referred me to the procedure which was adopted in this case. There can be no doubt that the procedure abounds in irregularities and is by no means procedure authorised by law when a Court has to deal with an offence. If the irregularities were few in number, it might be possible for a Court to ignore them and to hold that they were irregularities which had crept into the case from mere carelessness or ignorance of the law. Even then it would be necessary to consider whether the irregularities complained of are such as to give cause for an apprehension that the individual prosecuted for the offence or the public would be liable to injury, but when the irregularities are so many as have taken place in the trial and the proceedings antecedent to trial as in the present case a Court cannot overlook them.

2. I propose to deal with one or two of the irregularities which I consider dangerous to the public, or which might easily result in consider able danger to the public. The offence is one punishable under Section 307 of the United Provinces Municipalities Act, 1916. This provides that if a notice has been given under the provisions of this Act or under a rule or bye-law to a person requiring him to execute a work in respect of any property, moveable or immoveable, &c.;, the person shall be liable on conviction before a Magistrate to a fine which may extend to Rs. 500. It is hardly necessary to point out that the notice made punishable by this section must be a legal notice and a notice issued by some authority competent to issue such notice. It could never be contemplated that a notice which the law authorises the Board or the Chairman of the Board to issue can cover a notice issued and signed, say, by a Daftari or a peon in a Municipality which the Board or the Chairman may or may not have seen. In the present case the intention to issue a notice by the Board was contemplated and even ordered to be sent. The paper, however, containing the notice when it reached the person concerned and charged with disobedience of it, was, as a matter of fact, issued and signed by the Secretary, and there was nothing to show on the face of it that the Municipal Board had sanctioned the prosecution.

3. The section of the Act which deals with a matter of this kind is Section 50. This requires that several powers, duties and functions shall be performed or discharged by the Chairman of the Board and not otherwise (Section 50, clause E). Exception to this general authority is provided for in cases where there is an Executive Officer, It appears that in Mirzapur at the time, namely, the year 1918, there was no Executive Officer and if the Board wanted to issue a legal notice, it could only get it performed or discharged by the Chairman of the Board. I do not mean to lay down for a moment that the Chairman of the Board must go and tender or otherwise execute service of a notice required by the Municipal Act, but the person who receives what is said to be a notice, can question it if he does not find on the notice any signature of the Chairman guaranteeing that the notice is one sent by the Board. This so called notice was, as the evidence shows, taken to the house of business of the accused. It was then given to a Munib. No attempt, so far as the evidence shows, was made to seek for and so find the accused. It is not shown or suggested that the Munib was an adult male member of the family. It is suggested that he was a servant of the family but the 'servant' contemplated by Section 303 must be a servant ad hoc. The notice was not fixed on any conspicuous part of the building to which the notice related.

4. It is quite possible that a so called notice may be given to some person employed by the owner for particular duties not connected with the receipt of letters, notices, etc., and overlooked by such person and never brought to the knowledge of the owner or a member of the owner's family. There is a great difference between giving a notice to a male member of the family and fixing it to some conspicuous part of the building where the possibility and the probability is great that the owner must come to know of it within a reasonable time.

5. There is an important section in the Act which appears to have been overlooked, namely, Section 314, which says that no Court shall take cognizance of such offences except on the complaint or upon information received from the Board or some person authorised by the Board by general or special order in this behalf. Neither the Board nor the Chairman of the Board nor any person authorised by the Board by general or special order has been shown in this ease to have instituted the prosecution before the Court which dealt with it. The person who instituted the prosecution was the Secretary of the Board. The Secretary does not appear to have gone to the Court, to have banded in to the Court, the authority for his act, or to have sworn to the complaint.

6. As I have already shown, the Secretary is not a person who has been authorised by the Municipal Act to do work of this kind.

7. Here again it is quite possible to consider the necessity of this guarding section. An overzealous Secretary, not to speak of a Secretary influenced by some Other motive, may run into Court and institute a complaint without proper authority to do so.

8. From the papers in this case it is evident that there were some searchings of heart, for, the Vice-Chairman of the Board on the 16th of May postponed proceedings and directed that the case should be put up before himself. In any case, I hold that the accused in this case did not receive what Act No. II of 1916 contemplates as a notice and that the Court had not jurisdiction to do what it did. Acting under my revisional powers I set aside the conviction and the order and direct that any fine or part of the fine that has been paid be refunded.


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