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Balchand S/O Bardichand Pamecha Vs. Mandsaur Municipality - Court Judgment

LegalCrystal Citation
SubjectCriminal;Constitution
CourtMadhya Pradesh High Court
Decided On
Case NumberCriminal Revn. No. 273 of 1958
Judge
Reported inAIR1960MP20
ActsMadhya Bharat Municipalities Act, 1954 - Sections 187; Constitution of India - Article 50; Code of Criminal Procedure (CrPC) , 1898 - Sections 14, 30, 260 and 261
AppellantBalchand S/O Bardichand Pamecha
RespondentMandsaur Municipality
Appellant AdvocateS.T. Malgawa, Adv.
Respondent AdvocateS.L. Pamecha, Adv.
DispositionApplication dismissed
Excerpt:
- - any way it has been admitted and is better heard on merits. 3. a good deal of the argument centres round whether the facts justified the conviction. i entirely fail to see how s. clearly, the competency to try a particular case or class of cases is different from the competency to follow a particular procedure, in such cases as he is otherwise competent to try......of fact.4. it is urged that there was no formal questioning of the applicant under section 342 criminal procedure code; however, he has been subsequently examined and has given his defence which is to the effect that the filth was certainly leaking or seeping out, but it was not his fault as a municipal sweeper should be there to clean it every time there was seepage. that of course, was unreasonable. anyway, the non-examination under section 342 has caused the applicant no prejudice whatsoever.5. this was all the position in the application and presumably, before the sessions judge. about four months after the application, a new ground was taken in a fresh petition taking objection to the appointment of the magistrate concerned and urging that the magistrate could not have been.....
Judgment:
ORDER

H.R. Krishnan, J.

1. The applicant has been convicted for the contravention of a provision regarding sanitation in the Madhya Bharat Municipalities Act, and has been sentenced to pay a fine of Rs. 2/-. The conviction was by a Magistrate who being the Chief Executive Officer, had been appointed under Section 187 of the said Act.

2. The applicant has proceeded against this conviction and insignificant sentence with a grossly disproportionate zeal. It is usual in such cases of non-appealable sentences to insist upon the applicant moving the Sessions Judge for a reference. This applicant did so but allowed the application before the Sessions Judge to be dismissed for default. This alone might have justified the dismissal of this application; any way it has been admitted and is better heard on merits.

3. A good deal of the argument centres round whether the facts justified the conviction. The applicant has a latrine which he constructed in 1937, and from which filth was seeping or leaking on the road. The finding of fact is that the latrine itself is so constructed that it cannot contain the refuse and as such leakage or seepage is inevitable. In his own interest, he should put an end to thisnuisance; but he has been preferring to spend in law courts several times the amount of money and trouble that could get him a latrine satisfactory to the sanitary requirements of the municipal law. Obviously, this court cannot go into the finding of fact.

4. It is urged that there was no formal questioning of the applicant under Section 342 Criminal Procedure Code; however, he has been subsequently examined and has given his defence which is to the effect that the filth was certainly leaking or seeping out, but it was not his fault as a municipal sweeper should be there to clean it every time there was seepage. That of course, was unreasonable. Anyway, the non-examination under Section 342 has caused the applicant no prejudice whatsoever.

5. This was all the position in the application and presumably, before the Sessions Judge. About four months after the application, a new ground was taken in a fresh petition taking objection to the appointment of the Magistrate concerned and urging that the Magistrate could not have been appointed and therefore the entire trial was void. The idea apparently is that the two rupee sentence should be set aside and then the applicant should have the luxury of a second 'trial. The insignificance of the case and the belated stage in which the point is raised, could justify our rejecting of this ground. Still, it is a point that may come up for consideration sooner or later in some other case and as such worth considering in this case itself.

6. Section 187 of the Madhya Bharat Municipalities Act enables the State Government to appoint one of the officers of the municipality, a Magistrate, under the Criminal Procedure Code for the purpose of trying offences of a particular class under the Municipal Act. They are offences regarding sanitation punishable with very small fines. In a general way, this provision offends the general directive principle in Article 50 of the Constitution, but that alone cannot render this section ultra vires. Though this is mentioned in the supplementary application, it has not been pressed.

7. The notification appointing the Chief Executive Officer of the Municipality as a Magistrate First Class, mentions that he has been appointed under Section 187 of the Act and Section 14 of the Criminal Procedure Code. The Government seems to have thought that the Magistrate appointed under Section 187 is a 'Special Magistrate' tinder Section 14 of the Criminal Procedure Code. Actually, Section 187 of the Act is a self-contained provision. Assuming that he is also a Special Magistrate under Section 14, Criminal Procedure Code, the applicant has argued that the Chief Executive Officer does not have the qualifications prescribed by Government after consultation with the High Court. Therefore, the argument is, he could not have been appointed and a trial by him is void ab initio.

8. Section 14, Criminal Procedure Code, as recently amended runs thus:

'The State Government may confer upon any person who holds or has held a judicial post under the Union or a State, or possesses such other qualifications, as may, in consultation with the High Court, be specified in this behalf by the State Government by notification in the official gazette.....'

No notification by Government specifying such other qualifications has been placed before me and I assume that it has not been made. Certainly, it is open to Government to prescribe after consulting the High Court, the qualifications that should be possessed by persons other than judicial officers to enable them to be appointed Special Magistratesunder Section 14. The word used is 'may' and if no such qualifications have been prescribed, it would fellow that the Government can appoint such persons as Magistrates by virtue of any other qualifications as may be prescribed by the independent statute under which they are appointed. Here, the qualification is that he is an officer of the Municipality in the manner provided in Section 187. The position would have been different if Government after consultation with the High Court prescribes such qualifications and notifies it. In that event, it cannot appoint a Magistrate under Section 14, either if he is not a judicial officer or does not possess the prescribed qualifications. That position has not yet arisen.

9. Yet another ground urged is that this Magistrate could not have been given summary powers, as indeed he has been, unless he had exercised magisterial powers already for ten years which, of course he has not. The grant of summary powers to this Magistrate by notification comes under Section 261(b) Criminal Procedure Code. As already noted, the class of cases for the trial of which this Magistrate has been appointed is very simple one, often of a purely mechanical nature punishable with trifling fines. In fact, the fine imposed on the applicant is quite insignificant. It is only proper, therefore, that the Magistrate should be given summary powers. Section 261(b) of the Code runs thus:

'Any magistrate of the first class specially empowered in this behalf by the State Government.'

The applicant's learned counsel argues that this is governed by Section 30 of the Criminal Procedure Code. That section, as now amended, empowers the State Government in consultation with the High Court to invest any District Magistrate, Presidency Magistrate, or Magistrate of the first class with power to try certain class of offences. There is a proviso that the Magistrate so empowered should have had a certain experience. I entirely fail to see how S. SO comes in here. The scopes of Section 30 and Section 260 are altogether different. The former is to enable a particular Magistrate to try a particular class of cases. The latter has nothing to do with the competency of the Magistrate to try a particular class of cases. On the other hand, Section 260 does not enable the Magistrate to try any case or class of cases which he is not otherwise competent to try. It empowers him to try the cases that he is already competent to try, by a particular procedure. Clearly, the competency to try a particular case or class of cases is different from the competency to follow a particular procedure, in such cases as he is otherwise competent to try.

10. Thus, I find that the application is altogether without substance and dismiss it.


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