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The Rajkot Borough Municipality Vs. Bhavan Khengar Chotlia and anr. - Court Judgment

LegalCrystal Citation
SubjectMunicipal Tax
CourtGujarat High Court
Decided On
Judge
Reported in(1963)4GLR997
AppellantThe Rajkot Borough Municipality
RespondentBhavan Khengar Chotlia and anr.
Excerpt:
- - the law requires that magistrates should not allow remand in such cases without being satisfied that there are really good grounds for it. magistrates should not therefore allow remand applications as a matter of course but only after being satisfied that further time is really necessary for the purpose of investigation. and such entries and material should be carefully examined by the magistrates in order to satisfy themselves that there are good grounds for remand......section 20 of the court fees act vii of 1870 and these rules were published at page 149 of the bombay government gazette for 1875 part 1. these rules were partly amended in 1931 by the high court of bombay by notification no. 1814 date 10-8-1931 published in the bombay government gazette part i dated 13-8-1931 at page 1843 and the said notification reads as under:in exercise of the powers conferred by section 20 of the court fees act vii of 1870 and with the previous confirmation of the government of bombay the high court is pleased to alter the existing rules as to fees chargeable for serving and executing processes issued by the criminal courts established within the local limits of its appellate jurisdiction by substituting the following rules i and in published at page 149 of the.....
Judgment:

V.B. Raju, J.

1. A complaint filed by the Rajkot Borough Municipality was dismissed on the ground that process fee had not been paid. The contention of the Municipality that no process fee was required on a complaint filed by the Municipality was rejected by the learned Sessions Judge who relied on Note (2) to Para 1 of Chapter II of the Criminal Manual of the High Court Of Bombay 1960 and the learned Sessions Judge observed as follows:

This contention cannot be accepted as correct in view of Note (2) to para 1 of Chapter II of the Criminal Manual of the High Court of Bombay. 1960. It is prescribed therein that process fees are leviable from Municipalities in respect of summonses and warrants issued in cases falling under Section 200(2) of the Bombay Municipal Boroughs Act 1925

Section 32 of the Bombay Court-fees Act 1959 reads as follows:

The High Court shall make rules as to the following matters:

(i) the fees chargeable for serving and executing process issued by such Court in its appellate jurisdiction and by the other Civil and Revenue Courts established within the local limits of such jurisdiction;

(ii) the fees chargeable for serving and executing processes issued by the Criminal Courts established within such limits in the case of offences other than offences for which police officers may arrest without a warrant; and

(iii) the remuneration of the peons and all other persons employed by leave of a Court in the service or execution of processes. The High Court may from time to time alter and add to the rules so made. All such rules alteration and additions shall after being confirmed by the State Government be published in the Official Gazette and shall thereupon have the force of law.

The High Court has also power to frame rules under Section 20 of the Court Fees Act VII of 1870 and these Rules were published at page 149 of the Bombay Government Gazette for 1875 Part 1. These rules were partly amended in 1931 by the High Court of Bombay by Notification No. 1814 date 10-8-1931 published in the Bombay Government Gazette Part I dated 13-8-1931 at page 1843 and the said notification reads as under:

In exercise of the powers conferred by Section 20 of the Court Fees Act VII of 1870 and with the previous confirmation of the Government of Bombay the High Court is pleased to alter the existing rules as to fees chargeable for serving and executing processes issued by the criminal courts established within the local limits of its appellate jurisdiction by substituting the following rules i and in published at page 149 of the Bombay Government Gazette for 1875 Part I and in Circular No. 16 at page 13 of the High Court Criminal Circular Order Book 1925: In all cases under the Indian Penal Code:

(1) For every summons or notice... 4 annas.

(2) For every warrant of arrest... 1 Rupee.

(3) For every Proclamation for absconding party or witness

(Cri. Pro. Code Sections 87 and 88)... 1 Rupee.

(4) For every warrant of attachment... 1 Rupee.

Bombay 10 August 1931

2. If we look at this notification it is clear that the rules as originally framed were published at page 149 of the Bombay Government Gazette for 1875 Part I. For convenience of reference these rules were subsequently printed in the High Court Criminal Circular Order Book 1925 But what is printed in the High Court Criminal Circular Order Book 1925 would not be an official copy of the rules as published in the Bombay Government Gazette of 1875. It is only a copy of the rules as framed by the High Court of Bombay and published at page 149 of the Bombay Government Gazette 1875 What is printed in the High Court Criminal Circular Order Book 1925 is a re-print fifty years later of the rules as published in the Bombay Government Gazette of 1875 and would only be secondary evidence of the rules as framed and published in the Bombay Government Gazette of 1875. According to the rules as framed originally and a proviso contained in those rules no fee shall be levied on any process issued upon the complaint of any public officer acting as such public officer Under Section 56 of the Bombay Municipal Boroughs Act 1925 all officers and servants of the Municipality are public servants. That section reads as follows:

(1) Every municipal councilor officer or servant and every lessee of the levy of any municipal tax and every servant or other person employed by any such lessee shall be deemed to be a public servant within the meaning of Section 21 of the Indian Penal Code.

(2) The word Government in the definition of legal remuneration in Section 161 of that Code shall for the purposes of Sub-section (1) of this section be deemed to include a municipality.

It is true that this section speaks of a public servant within the meaning of Section 21 of the Indian Penal Code. But in view of this definition a municipal servant who lodges a complaint on behalf of the municipality would have to be treated as a public officer. But Note (2) on page 19 of the Criminal Manual issued by the High Court of Bombay Appellate Side in 1960 reads as follows:

Process fees are leviable from Municipalities in respect of summonses and warrant issued in cases falling under Section 161(2) of the Bombay District Municipal Act III of 1901 and Section 200(2) of the Bombay Municipal Boroughs Act XVIII of 1925.

If we look at the High Court Criminal Manual and the preface to it is not a set of rules as framed by the High Court of Bombay. Page 17 of this book contains a reproduction of Rule 221 of the Bombay Police Manual 1950 On page 3 of the said book para 4 reads as follows:

(1) It is observed that Magistrates allow remand of the accused to custody under Section 167 of the Criminal Procedure Code or allow remand under Section 344 without satisfying themselves that there are reasonable grounds for such remand. The law requires that Magistrates should not allow remand in such cases without being satisfied that there are really good grounds for it. Magistrates should not therefore allow remand applications as a matter of course but only after being satisfied that further time is really necessary for the purpose of investigation.

(2) In this connection attention of the Magistrates is drawn to the provisions of Section 167(1) of the Code of Criminal Procedure which makes it obligatory on the police to send copies of entries in the diary relating to the case when for warding the accused for the purpose of remand. Magistrates should invariably insist upon copies of such entries and other relevant material being produced by the police; and such entries and material should be carefully examined by the Magistrates in order to satisfy themselves that there are good grounds for remand.

It is clear therefore that the High Court Criminal Manual contains merely administrative instructions given by the High Court of Bombay and it has not the force of law. It may be that in the High Court Manual the rules as framed by the High Court of Bombay are printed. The rules framed by the High Court of Bombay are to be found in the Bombay Government Gazette and they have the force of law.

It appears that Note (2) on page 19 of the High Court Criminal Manual is based on a High Court Circular published at page 2782 of the Bombay Government Gazette Part I dated 17-12-1931. That Circular reads as follows:

No. 2739-In exercise of the powers conferred by Section 20 of the Court Fees Act VII of 1870 and with the previous confirmation of the Government of Bombay the High Court is pleased to make the following amendments in Circular No. 16 in Chapter II at page 13 of the Criminal Circular Order Book 1931 as amended by addendum IV at the beginning of the Book:

I

Delete the words under the Indian Penal Code occurring after the words in all cases in circular No. 16(1).

II

for the existing note (2) to Criminal Circular No. 16 in Chapter II at page 13 the Criminal Circular Order Book 1939 substitute the following:

Note (2)-Process fees are leviable from Municipalities in respect of summonses and warrants issued in cases falling under Section 161(2) of the Bombay District Municipal Act III of 1901 and Section 200(2) of the Bombay Municipal Boroughs

Act XVIII of 1925.

Bombay 10 December 1931.

By this Circular the High Court of Bombay Appellate Side purported to amend Circular No 16 in Chapter II at page 13 of the Criminal Circular Order Book 1931 as amended by addendum IV at the beginning of the Book. But by this notification the High Court of Bombay never purported to amend the rules. If the High Court had purported to amend the rules the language similar to that used in Notification No. 1814 dated 10-8-1931 printed at page 1843 of the Bombay Government Gazette Part I dated 13 and reproduced above should have been used. The language used there is: The High Court is pleased to alter the existing rules as to fees chargeable for serving and executing processes issued by the Criminal Courts established within the local limits of its appellate jurisdiction by substituting the following rules for Rules 1 and 11 published at page 149 of the Bombay Government Gazette for 1875 Part I. That should have been the language used for amending the previous rule. This language has not been used in Notification No. 2739 dated 10-12-1931 published at page 2782 of the Bombay Government Gazette dated 17-12-31 Part I. It is stated that the previous confirmation of the Government of Bombay has been taken. It is also true that the rules as framed in 1875 were printed not only in the Bombay Government Gazette of 1875 but also in the High Court Criminal Circular Order Book 1925 But as already observed Notification No. 2739 dated 10-12-1931 printed at page 2782 of the Bombay Government Gazette Part I and reproduced above does not purport to amend the High Court Criminal Circular Order Book 1925 It purports to amend only the High Court Criminal Circular Order Book 1931 It is therefore clear that it does not purport to amend the rules as published in the Bombay Government Gazette of 1875 at page 1843. It does not even purport to amend the High Court Criminal Circular Order Book of 1925. Even if it purported to amend the High Court Criminal Circular Order Book of 1925 that would not have been sufficient because what is necessary in such a case is an amendment of rules as published in the Bombay Government Gazette of 1875. For both these reasons it is clear that notification No. 2739 dated 10-12-1931 and printed at page 2782 of the Bombay Government Gazette of 1931 Part I is not an amendment of the rules as framed by the High Court of Bombay Appellate Side in 1875. Note (2) published in Criminal Manual issued by the High Court of Bombay at page 19 does not therefore affect the rules as framed in 1875.

3. In view of the proviso to the rules as framed in 1875 it is clear that a public officer is not required to pay process fee in respect of any process issued upon the complaint of any public officer acting as such public officer. I therefore hold that the learned Sessions Judge was wrong in holding that in this particular case process fee was required.

The order of the learned Sessions Judge and the order of the learned Magistrate dismissing the complaint for non-payment of process fee are therefore set aside and the learned Magistrate is directed to proceed with the complaint in accordance with law although no process fee has been paid by the Municipality.


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