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John Vs. Sherthalai Municipality - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Case NumberCriminal Revn. Petn. No. 161 of 1958
Judge
Reported inAIR1959Ker323; 1959CriLJ1180
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 342A; Evidence Act, 1872 - Sections 167; Travancore District Municipalities Act, 1116 - Sections 133; Travancore District Municipalities Rules - Rules 19, 19(1), 23, 26, 28, 31(2) and 38
AppellantJohn
RespondentSherthalai Municipality
Appellant Advocate K.K. Mathew and; George Vadakkel, Advs.
Respondent Advocate V. Rama Shenoi and; R. Raya Shenoi, Advs.
DispositionPetition dismissed
Cases ReferredPublic Prosecutor v. V.N. Ramalingam Pillai
Excerpt:
.....was bad and that the prosecution was consequently unsustainable. however as observed by the district magistrate it is unthinkable how a first class magistrate could have committed such wanton violation of an express provision of the code of criminal procedure and no criticism would be too severe to condemn it. 4. now, to come to the main point whether the prosecution for non-payment of a tax levied by a municipal council or other local authority would be bad for any non-compliance with the provisions laid down regarding the assessment of the levy. these contentions are well founded. , himself and ganapathia pillai, 8. in the light of the foregoing it is not opento the petitioner to contend in this proceeding thatthe assessment was illegal or void by reason ofthe alleged..........and before this court it was contended on behalf of the petitioner that such examination of the accused person was in direct contravention of section 342-a, criminal procedure code which while providing that an accused person shall be a competent witness for the defence and may give evidence on oath in disproof of the charges made against him or any person charged together with him at the same trial has also enjoined that an accused person shall not be called as a witness except on his own request in writing (see proviso (a) ). it is therefore clear that the learned magistrate committed a grave error in examining the accused person without his request and against his protest, to prove a fact which the prosecution should have established by other evidence.that, however, is in my.....
Judgment:
ORDER

Koshi, C.J.

1. The petitioner herein was prosecuted before the Court of the First Class Magistrate, Sherthallay by the Municipal Council of that town for non-payment of the profession tax assessed on him for the first half year of 1954-55. The prosecution was launched under Rules 31 (2) and 38 of Schedule II of Act XXIII of 1116 (The Travancore District Municipalities Act, 1116). The learned Magistrate found that the petitioner had wilfully omitted to pay the amount due by him and accordingly convicted and sentenced him to pay a fine of Rs. 6/- and in default to undergo simple imprisonment for 3 days. The tax due from him, namely, Rs. 6-2-0 was also ordered to be recovered. The petitioner then moved the learned District Magistrate of Alleppey in Criminal Revision Petition No, 4 of 1958 to make a reference to this Court about the legality of the conviction entered against him. The learned District Magistrate declined to make the reference and the petitioner therefore filed this revision. A learned single Judge admitted the revision and issued notice to the opposite party, the Municipal Council, Sherthally.

2. Before the two lower courts and in this Court the main argument has been that in asmuch as the assessment was made without a proper compliance with Rule 19(1) of Schedule II of the District Municipalities Act. The assessment was bad and that the prosecution was consequently unsustainable. This raised an, important question but before discussing it I must dispose of a preliminary point raised by the learned counsel for the petitioner.

3. The notice under Rule 19(1) calling upon the petitioner to furnish a return in the prescribed form showing the income on the basis of which he was liable to be assessed to profession tax was not served personally but by affixture as permitted by Section 352(1) (d) of the District Municipalities Act. The affixture was made on Door No. 305 but the petitioner contended that both his residence and his place of business was in the building numbered as 169 and that the service was therefore ineffective and invalid. According to the respondent Municipal Council the building numbered as 305 which was not far away from that numbered as 169 also belonged to the petitioner and he was running a business there. With a view to determine whether the council's contention was right, instead of calling for the relevant registers from the Council, against his protest, the learned Magistrate examined the petitioner (the accused in the case) as a court witness and elicited from him the information that building No. 305 also belonged to him. Before the District Magistrate and before this Court it was contended on behalf of the petitioner that such examination of the accused person was in direct contravention of Section 342-A, Criminal Procedure Code which while providing that an accused person shall be a competent witness for the defence and may give evidence on oath in disproof of the charges made against him or any person charged together with him at the same trial has also enjoined that an accused person shall not be called as a witness except on his own request in writing (see proviso (a) ). It is therefore clear that the learned Magistrate committed a grave error in examining the accused person without his request and against his protest, to prove a fact which the prosecution should have established by other evidence.

That, however, is in my opinion, no ground to quash the entire proceedings. Section 167, Indian Evidence Act, 1872 provides inter alia that improper admission of evidence shall not be ground of itself for a new trial or reversal of any decision in any case, if it shall appear to the Court before which such objection is raised that independently of the evidence objected to and admitted, there was sufficient evidence to justify the decision. The question whether the prosecution was sustainable or the conviction was rightly made has therefore to be examined eschewing altogether the evidence furnished by the accused while under examination as a court witness. Beyond that it is not necessary to go in this case and the preliminary point is therefore repelled. However as observed by the District Magistrate it is unthinkable how a First Class Magistrate could have committed such wanton violation of an express provision of the Code of Criminal Procedure and no criticism would be too severe to condemn it. It is only by the Amendment Act XXVI of 1955 that Section 342A was introduced into the Code and until then an accused person was not a competent witness in a prosecution against him except in cases specially provided by Section 340 (2) of the Code.

4. Now, to come to the main point whether the prosecution for non-payment of a tax levied by a Municipal Council or other Local Authority would be bad for any non-compliance with the provisions laid down regarding the assessment of the levy. I am afraid it is too late in the day to contend that a criminal court is competent to go into the question of the legality or the validity of the assessment Here a notice-under Rule 19 (1) of Schedule II was actually issued. Any defect in service of the notice would only be an irregularity and it will not affect the jurisdiction of the Council to make the assessment. The contention of the petitioner should however, be negatived on grounds more fundamental than the one now mentioned.

5. Admittedly after the petitioner was assessed to profession tax for the first half year of 1954-55 a notice of demand as enjoined by Section 94 of the District Municipalities Act was served upon the petitioner as early as 8-2-1955 and the prosecution was launched only in January 1957. Rule 23 of Schedule II provides inter alia that an appeal shall lie to the Council in respect of the assessment and imposition of profession tax (vide Clause (b)). Under Rule 26 the appeal shall be brought within fifteen days from the service of the notice referred to in Section 94 (vide Clause (a) (i) ). Under Rule 28 the assessment or demand of any tax when no appeal is made as provided by the rules referred to shall be final. It was afler the assessment had received such finality that proceedings under Rules 31 and 38 were initiated. Section 133 of the District Municipalities Act enacts that the Rules and tables embodied in Schedule II (Taxation and Finance Rules) shall be read as part of Chapter VI (Taxation and Finance). The result is the assessment or levy can be questioned only under the provisions and in the manner prescribed under the Act and the rules framed thereunder and not de hors them. This fs settled by a long line of decisions.

6. Mr, Rama Shenoi appearing for the respondent Municipal Council contended that the fact ofnotice to pay profession tax for the half year (1954-55) having been served on the petitioner was conclusive of his liability to pay in view of his failureto prefer an appeal to the Council as per the provisions in Rules 23 and 26 and that the jurisdictionto question the assessment otherwise than by useof the machinery expressly provided by the Actwould appear to be inconsistent with the statutoryobligation to pay arising by virtue of the assessment.These contentions are well founded. The Act andthe Rules framed thereunder prescribe both theremedy and the manner in which it may be enforced.

Where a statute sets up a hierarchy of authorities, a person who considers that he has been improperly assessed, and who makes a complaint either on the ground that he was not liable at all or that he was liable only for a smaller amount, must seek his redress before the authorities set up by the statute. When he is proceeded against in the ordinary courts he can set up only those pleas which he could not have urged before the authorities created by the statute or which those authorities by reason of the fact that they have been set up under the statute are precluded from entertaining. An instance of that would be that the Act (or the Rules as the case may be) or any particular provision thereof is ultra vires. The accused person may also for example show that he is not the person assessed or that he has paid the amount in respect of which he has been assessed. No plea not falling under these categories will be open to him before a court where he is proceeded against for non-payment or realisation.

7. In support of the position enunciated above I shall not burden this order with too many citations. I shall content myself by referring to two decisions of the Madras High Court, one reported in Veeraragbavalu v. President, Corporation of Madras, ILR 34 Mad 130, and the other in Public Prosecutor v. V.N. Ramalingam Pillai, 1958-9 STC 510; (AIR 1958 Mad 544) (FB). In this latter case there is an exhaustive, review of the case law bearing on the subject by Balakrishna Ayyar, J. who pronounced the judgment of the Full Bench consisting of Rajagopalan, J., himself and Ganapathia Pillai,

8. In the light of the foregoing it is not opento the petitioner to contend in this proceeding thatthe assessment was illegal or void by reason ofthe alleged irregularity regarding the service of thenotice under Rule 19 or any like cause. The petition fails in the result and it will stand dismissed.


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