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Sm. Aloka Ghosh Vs. the Corporation of Calcutta - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Case NumberCriminal Revn. Case No. 182 of 1963
Judge
Reported inAIR1964Cal43,1964CriLJ32
ActsCalcutta Municipal Act, 1951 - Sections 561(2), 561(4) and 582; ;Calcutta Municipal Rules - Rule 5(1)
AppellantSm. Aloka Ghosh
RespondentThe Corporation of Calcutta
Appellant AdvocatePurnendu Sekhar Basu and ;Mahendra Kumar Ghose, Advs.
Respondent AdvocateSunil Kumar Basu, Adv.
Cases ReferredBrajendra Kumar Chakravarti v. B. Bose
Excerpt:
- .....the calcutta municipal act. this issue of limitation was heard as a preliminary issue before the learned magistrate who has decided it against the accused, that is, the present petitioner. 2. the facts relevant for deciding that issue arc that a notice under rule 5(1) of schedule xvii of the act was issued directing the petitioner to comply with the requisition within thirty days or file objection within seven days thereof. this notice was served on the petitioner on december 7, 1960. thereafter, an objection within the time mentioned was preferred and it was placed before the standing committee in compliance with sub-section (2) of section 561 of the act. that standing committee, called in this proceeding. standing building committee, disposed of the matter by a resolution on august.....
Judgment:
ORDER

Amaresh Roy, J.

1. This Rule issued at the instance of a party against whom a proceeding by way of prosecution of non-compliance with the requisition of a notice under Rule 5(1) of Schedule XVII of the Calcutta Municipal Act, 1951, is pending before the learned Municipal Magistrate raises an issue of limitation based on Section 582 of the Calcutta Municipal Act. This issue of limitation was heard as a preliminary issue before the learned Magistrate who has decided it against the accused, that is, the present petitioner.

2. The facts relevant for deciding that issue arc that a notice under Rule 5(1) of Schedule XVII of the Act was issued directing the petitioner to comply with the requisition within thirty days or file objection within seven days thereof. This notice was served on the petitioner on December 7, 1960. Thereafter, an objection within the time mentioned was preferred and it was placed before the Standing Committee in compliance with Sub-section (2) of Section 561 of the Act. That Standing Committee, called in this proceeding. Standing Building Committee, disposed of the matter by a resolution on August 10, 1961, and the objection was disallowed. This resolution was approved by the Chairman, presumably the Chairman of that Standing Committee, on September 18, 1961. Thereafter, on November 23, 1961, a complaint was filed before the Municipal Magistrate alleging an offence for non-compliance with the requisition of the notice under Rule 5 (1) of Schedule XVII. An objection was taken before the learned Magistrate that the complaint not having been made before a Magistrate within three months next after the date of the commission of the alleged offence, the accused person was not liable to punishment as provided under Section 582 of the Calcutta Municipal Act. This objection was heard as a preliminary point by the learned Municipal Magistrate andthe learned Magistrate has held that because the complaint had been lodged in the court of the Magistrate within the period of ninety days from the date of the approval of the resolution of the Standing Committee by its Chairman, the prosecution was within time. This decision of the learned Magistrate has been assailed in the present Rule.

3. Mr. Purnendu Sekhar Basu, the learned Advocate appearing in support of the Rule, has referred to Section 582 and contended that the offence being for non-compliance of the requisition of the notice within thirty days of the service of the notice which expired on January 6, 1961, the offence was complete on that date and the last date within which the complaint could have been filed would be April 6, 1961. That not having been done, the prosecution was liable to be quashed.

4. Appearing on behalf of the opposite party, the Corporation, the learned Advocate Mr. Sunil Kumar Basu has contended that under Section 561 (2), when an objection is preferred against the notice, the carrying out of the requisition of the order into effect shall be stayed. Therefore, Mr. Sunil Kumar Basu contends that the whole of the period during which the matter was before the Standing Building Committee should be excluded in calculating the period of limitation prescribed by Section 582 of the Act. This argument of Mr. Basu could have been countenanced had there been a provision in the Calcutta Municipal Act to authorise the deduction which Mr. Sunil Basu is pleading. Not only there is no such provision in the Act, but Sub-section (4) of Section 561 provides that where the notice is confirmed, the Standing Committee 'may, if it thinks fit, fix a time within which the notice as confirmed or modified by it Shall be complied with.' This provision is clearly a provision in the background of limitation that is prescribed under Section 582 of the Act, because non-compliance within the time fixed by the Standing Committee under Section 561, Sub-section (4) (a) (ii), will give a new starting point for calculating the three months next after the date of the commission of an offence. In the present case, the resolution of the Standing Committee was in these terms :

'Thereupon it was -

Resolved : That the objection be disallowed.'

This clearly shows that the Standing Committee did not fix any later date for compliance of the notice. Mr. Sunil Basu for the Corporation of Calcutta has urged that the word in Section 561(4) (a) (ii) is 'may' and, therefore, there is no compelling duty on the Standing Committee to fix such a time. Undoubtedly so. And if the Standing Committee of the Corporation of Calcutta does not act in the manner envisaged in that Clause (ii) of Sub-section (4), the only effect is that a prosecution intended to be launched on behalf of the Corporation of Calcutta does not get 'a fresh lease of life by extended limitation. That is what has happened in the present case. Even from the date of the resolution of the Standing Committee, that is. August 10, 1961, more than three months had elapsed before the complaint had been launched on November 23, 1961. To overcome that difficulty, the learned Magistrate had calculated from the date on which the resolution of the Standing Committee was passed that is August 10, 1961, and then added the period during which the Standing Committee had stayed the operation of the notice and achieved the result that period of 30 days within which the requisition of the notice was to be complied with will expire on September 11, 1961. But the learned Magistrate excluded the 7 days between December 7, 1960, (when the notice was served) and December 14, 1960, (when the objection was filed) and by that process he reached a conclusion that September 4, 1961, should be taken as the commencement of the period of 3 months (not 90 days as the Magistrate says) and held that the prosecution commenced on November 23, 1961, was within time allowed by law.

5. This complicated and ingenuous process of calculation by the learned Magistrate is not only not warranted by any provision in the Calcutta Municipal Act, 1951 but also proceeds on complete neglect of Section 561 (4) (a) (ii) which is a new addition in the Act of 1951 in place of the old Section 511 in the Act of 1923. The provision in law that the Standing Committee may 'fix a time within which the notice as confirmed or modified by it shall be complied with' must be understood in the background that in Section 582 of the Act of 1951 the legislature has deliberately omitted what was provided in Sub-section (3) of old section 534 of the Act of 1923. Neither the decision by my learned' brother Debabrata Mookerjee, J. reported in 65 Cal W. N. 764, Corporation of Calcutta v. Kedar Nath Ghosh, to which the learned Magistrate has made reference in his judgment, nor another decision of that learned Judge reported in 98 Cal L. J. 101, Brajendra Kumar Chakravarti v. B. Bose, say any more than that the gist of the offence is the non-compliance with the notice and the period of 3 months under Section 582 will commence to run from the expiry of the period of grace given either by the statute in Section 324 or by the notice itself as the case may be. I respectfully agree that the period of 3 months under Section 582 shall commence from the date of expiry of the period of 30 days given in the notice for compliance. The learned' Magistrate has also held so. But in the present case, calculated from that date, the complaint was filed beyond the period of three months. The learned Magistrate conscious of that however has made an invention in the method of calculation of time as' I have mentioned above. Under what provision of law that was done could not be pointed out by the learned Advocate appearing for the Corporation and, as far as I can see, that is not authorised by anything in the whole of the Act. The decision on the point of limitation of this prosecution as given by the learned Magistrate must, therefore, be held to be erroneous in law. That being so no useful purpose will be served by continuing the proceeding before the learned Magistrate except of wasting public money and the costs of both sides.

6. For these reasons, this is a fit case in which the proceeding before the learned Magistrate must be quashed and I direct accordingly.

7. The Rule is made absolute.


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