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Ram Dayal Tewari Vs. Corporation of Calcutta - Court Judgment

LegalCrystal Citation
CourtKolkata High Court
Decided On
Case NumberCriminal Revn. No. 996 of 1951
Reported inAIR1953Cal76,56CWN329
ActsCalcutta Municipal Act, 1923 - Sections 386, 386(1), 488 and 531; ;Code of Criminal Procedure (CrPC) , 1898 - Sections 208, 338 and 340
AppellantRam Dayal Tewari
RespondentCorporation of Calcutta
Appellant AdvocateAmaresh Chandra Roy, Adv.
Respondent AdvocateBireswar Chatterji, Adv.
- .....of business and that in the absence of a proper notification to that effect under section 531, calcutta municipal act, the proceeding in which the petitioner had been convicted was utterly void.4. mr. chatterji who appears on behalf of the corporation has, however, produced before us a notification which is notification no. 7532-j, dated 19-12-1950, by which the government of west bengal directed that in addition to the times and places prescribed by earlier notifications, themunicipal magistrates might, at their discretion sit at any time of the day or night anywhere in calcutta, as defined in clauses 11 of section 3, calcutta municipal act. mr. boy contended that even this notification did not meet his objection, because to declare in a general manner that the municipal magistrates.....

Chakravartti, J.

1. The petitioner hag been convicted under Section 386 (i) (c), read with Section 488, Calcutta Municipal Act, for having kept some cattle at NOS. 22A and 22B, Southern Avenue, without having a license therefor. The sentence passed upon him is the maximum provided for in the section, viz., a fine of Rs. 250, but the learned Magistrate added that in default of payment he was to undergo simple imprisonment for 40 days. It appears that after recording the conviction the Magistrate purported to proceed under Section 388, Criminal P. C., but as the petitioner was not prepared to take advantage of the option provided for in that section, the learned Magistrate was prepared to send him to jail. But shortly thereafter a brother of his appeared and offered bail and on that bail he was released.

2. It is not disputed that the petitioner did keep a few heads of cattle at the premises concerned and that at the relevant time he did not hold any license which would authorise him to use the place for keeping cattle. Even in the petition to this Court it has not been claimed that the petitioner held any license at the time or that the finding that he wag keeping cattle at Nos. 22A and 22B, Southern Avenue, is not correct, in fact, at the trial he pleaded guilty. What was urged in support of the Rule were only certain legal objections in various forms.

3. The first ground taken related to the circumstance that the trial of the petitioner took place near the Kalighat Park in a motor van. It appears that on that day, one of the Municipal Magistrates was out in the streets of Calcutta, holding a mobile Court and it was before that Court that the petitioner was produced for his trial. Mr. Eoy, who appears on behalf of the petitioner, contended that the Kalighat Park had not been prescribed as a place where a Municipal Magistrate might sit for the despatch of business and that in the absence of a proper Notification to that effect under Section 531, Calcutta Municipal Act, the proceeding in which the petitioner had been convicted was utterly void.

4. Mr. Chatterji who appears on behalf of the Corporation has, however, produced before us a Notification which is Notification No. 7532-J, dated 19-12-1950, by which the Government of West Bengal directed that in addition to the times and places prescribed by earlier Notifications, theMunicipal Magistrates might, at their discretion sit at any time of the day or night anywhere in Calcutta, as defined in Clauses 11 of Section 3, Calcutta Municipal Act. Mr. Boy contended that even this Notification did not meet his objection, because to declare in a general manner that the Municipal Magistrates might hold their sittings anywhere they liked and at any hour of the day they pleased, was not to prescribe the times and places for sittings of the Court, as contemplated by Section 531. I am unable to accept that contention as correct. The section authorises the Local Government to prescribe the times and places at which the Magistrates shall sit for the despatch of business. If they are minded to prescribe all hours of the day and all places within Calcutta, as they well may under the wide terms of the section, I cannot see how it can be contended that a Notification in the terms of the Notification before us will not he appropriate for the purpose or will be contrary either to the letter or to the spirit of the section. 'Times' must inqlude all times and 'places' must include all places. It may be that if Courts are held indiscriminately at different places of the City at different times and the same accused is directed to appear at different places on different days, inconvenience may be caused. It may also be that if the proceedings are begun and terminated at a single sitting of the Mobile Court at some particular place in the City, a person who is tried by the Court at such a sitting, will be prejudiced in the matter of conducting his defence. Such objections, however, will be objections to the expediency of holding such trials or giving such directions for appearance at different places. They are not objections to the jurisdiction of the Court to hold its sittings anywhere it chose under the authority of the Notification.

Besides, the Notification does not say or intend that whenever a Mobile Court might have an accused person produced before it, it will proceed forthwith to call upon him to enter upon his defence and will dispose of the whole case all at once. As a matter of fact, as the learned Magistrate points out in his explanation, when he had the petitioner produced before him, he had also 10 other accused persons similarly produced and the latter having pleaded not guilty, their cases were adjourned and the trial will now take place in a proper manner and in the usual way. What the Mobile Court does in the first instance seems to me is merely that it receives complaints and also probably has the accused produced before it and takes the first step with regard to him. It is undoubtedly designed to mete out swift justice and will be able to do so when the ease is a petty one and the facts are simple or when the accused pleads guilty, as the petitioner did in this case. But if the accused pleads not guilty and claims to be tried and offers to call defence witnesses, naturally the case will have to be adjourned to a future sitting at somedefinite place and if that is done, there can be no question of the accused being prejudiced. I cannot see, therefore, how it can be contended that the Notification on which the Corporation relies in the present case is not a Notification in accordance with Section 531, or how the terms of the Notification bring about a state of affairs which by themselves make the proceedings held by Mobile Courts invalid. In my opinion the first contention urged by the petitioner must be rejected.

5. It was next contended that the petitioner had a fundamental right to be defended by a lawyer and such a right was denied to him. This contention was urged as a part of the main contention that the accused had a right to be tried at the place where the Municipal Court ordinarily held its sittings. It appears to us, however, from a reference to the record that the Magistrate asked the petitioner whether he wished to be represented by a lawyer and when the petitioner answered that he did not know how he could avail himself of the services of a lawyer, then the Magistrate informed him that he might go to the Court where services of legal practitioners would be available to him. Thereupon the petitioner replied, according to the record, with some impatience and emphasis that he did not wish to do anything of that kind and would rather plead guilty at once. In view of the fact that an opportunity was expressly offered to the petitioner to engage a lawyer if he desired to do so and that the Magistrate was prepared to adjourn the hearing of the case to the ordinary sittings of the Court at its usual place of sitting, I am of the opinion that there is no substance in the second point either.

6. It was also contended that the proceedings in the present case were not founded on a proper complaint, inasmuch as the complainant was a Sanitary Inspector, named Dr. N. B. Chowdhury, and not the Chief Executive Officer of the Corporation of Calcutta, as required by the Act. The petition of complaint which is on the record, however, bears the signature of the Chief Executive Officer, Mr. R. S. Trivedi, in the form of a rubber stamp and on the face of it, the complaint was not by the Sanitary Inspector who actually handed over the document to the Magistrate but by Mr. Trivedi who had signed the petition of complaint. Mr. Boy, however, contended that the complaint was filed on the same date that the petitioner was produced before the Magistrate and tried and consequently it could not have been that before the institution of the proceedings, a complaint properly signed by Mr. B. S. Trivedi had been obtained from him. In support of this contention, Mr. Boy relied upon a statement contained in the second portion of para. 4 of the petition of his client in which it was stated that the complaint had not been properly made by the Corporation of Calcutta or any person lawfully authorised to lodge a complaint. The petition, however, is only affirmed by one RamavatarChoudhury who describes himself as a relative of the petitioner and the affirmation with regard to para. 5 is that the matters contained therein are matters of record which the declarant believes to be true. The affidavit, therefore, adds nothing to the record and the record; as we have it before us, shows on the face of it that the complaint was one signed by the Chief Executive Officer Mr. B. S. Trivedi. It is not impossible that the Sanitary Inspector had detected the presence of cattle at the premises concerned previously and that he had obtained the petition of complaint from Mr, Trivedi earlier in the day and that it was only thereafter that he actually filed the petition of complaint before the Magistrate and had the petitioner produced before him. If the petitioner was minded to establish that the sequence of events was not as I have stated, it was for him to elicit the real facts by cross-examination of the Sanitary Inspector or prove them in some other way. Mr. Eoy's reply was that his client was an illiterate person and could not, therefore, be expected to take the course suggested. But whether a particular accused person is literate or illiterate can make no difference, when we are being asked to hold a petition of complaint to be invalid upon accepting a version of facts which he suggests. To all appearance, the petition of complaint is in order, and if the petitioner, whether he be literate or illiterate, expected the Court to throw out the petition, it was for him to establish and bring on the record the necessary facts. On the record, as it stands, there is nothing to show that the petition of complaint was not made by Mr. R.S. Trivedi as it purports to have been.

7. It was lastly contended that, in any event, the sentence imposed on the petitioner was too severe and it was pointed out that the learned Magistrate had obviously erred in proceeding upon the view that the petitioner was in the habit of abusing his neighbours filthily. There was nothing, it was pointed out, in the record to show that the petitioner was in the habit of abusing people. That appears to be true and the particular reason given by the learned Magistrate for imposing the maximum penalty has undoubtedly no foundation in the evidence. Even so, however, I do not consider that the learned Magistrate acted improperly in imposing the maximum sentence on the bare facts of the case, as they were. It is to be noticed that the section provides for merely a monetary penalty and the nuisance which it provides against is nuisance of a kind which is likely to make a locality filthy, unhealthy and generally abnoxious to decent civic life. If the section has to serve its purpose it seems to me that where a nuisance of this kind is detected, it is proper to impose the maximum or a substantial penalty. Mr. Boy in aid of his contention informed us that since his conviction, the petitioner had applied for and obtained a license and he showed us the document which his client had obtained. The point hesought to make obviously was that the keeping of cattle at the premises concerned had certainly not affected the locality injuriously, since, otherwise, the Corporation of Calcutta would not have granted the petitioner a license after having prosecuted him. It appears, however, that the license which the petitioner has obtained is only a license to carry on the profession of a milk-seller. It has no reference at all to his keeping cattle at No. 22A Southern Avenue or at any other place. It does not appear to us that the license upon which Mr. Roy relies can ever be an answer to a charge under Sections. 386, Calcutta Municipal Act, since the section seems to us to contemplate, quite a different evil and a different remedy and to require a license of quite a different kind. In any event, since 7-9-1951, the date with which we are concerned, was not covered by any license of any kind, it is not necessary for us to pursue this matter-further. In my opinion, even apart from the particular reason given by the learned Magistrate which, as I have stated, is not supported by evidence, the sentence imposed by the learned Magistrate is not one which is in excess of the necessities of the case.

8. It must, however, be held that in so far as the learned Magistrate thought that Section 388, Criminal P. C., had any application, he was clearly in error. Section 388 applies only to a case where the sentence is not only a fine but also imprisonment in default of the payment of the fine. Section 488, Calcutta Municipal Act, provides only for a fine up to Rs. 250 in cases of a breach of Section 386 (i), but does not provide for any imprisonment in default. Nor are the general provisions contained in the Indian Penal Code applicable, since those provisions apply to sentences imposed in accordance with that Code. The present case, therefore, is one where only a sentence of fine but no sentence of imprisonment in default could be imposed and that being so, Section 388 (l), Criminal P. C., was clearly inapplicable. The direction of the Magistrate that the petitioner is to suffer 40 days' simple imprisonment in default of the payment of the fine imposed must, therefore, be set aside.

9. I may add that in a ease where the offender can be and has been sentenced only to pay a fine, the proper procedure for levying the fine is that laid down in Section 386, Criminal P. C., and, if necessary, it is that section which ought to be resorted to.

10. In the result, the Rule is made absolute in part. The conviction of the petitioner and the sentence of a fine of Rs. 250 are upheld but the direction that the petitioner will suffer simple imprisonment for 40 days in default of the payment of the fine is quashed.

11. Consequently, the petitioner must be discharged from his bail bond.

Sinha, J.

12. I agree and I would like to add a few words. This case raises an interestingpoint as to whether it is possible to have 'Mobile Courts' presided over by a Municipal Magistrate appointed under the 'Calcutta Municipal Act,' moving about the City of Calcutta (as denned in the said Act) and trying offences on the spot. In this particular case, the petitioner was charged for the violation of the provisions of Section 386 (l) (c), Calcutta Municipal Act, inasmuch as he was keeping certain cows in an open place on Southern Avenue, without a license. He was tried by a 'Mobile Court' and convicted.

13. It is argued that the entire proceedings involved in a trial by a Mobile Court of this description is illegal. It is said that the appointment of Magistrates, their jurisdiction and as to the places where they should sit for despatch of business, is governed by Section 531, Calcutta Municipal Act. Under that section, the State Government which is the appointing authority is empowered to prescribe the times, the places at which the Magistrate or appointed under the Act should sit for the despatch of business. The formally constituted courts which have been prescribed are of course familiar. In the absence of any specific authorisation, it is certainly arguable that the 'Mobile Courts' were illegal institutions. But this has been remedied by a Notification No. 7532-J., dated 19-12-1951, issued by the Government of West Bengal. Under that Notification, the State in exercise of powers conferred by Section 531 of the Act has prescribed that Municipal Magistrates may, at their discretion, sit at any time during day or night anywhere in 'Calcutta (as defined in Clauses n Section 3, Calcutta Municipal Act) for the despatch of business. It is argued that this Notification is not only not in conformity with the section but is in breach of both its tenor and spirit. It is said that where a particular place or time has to be prescribed it is not permissible to say that the Court may be held 'Anywhere at any time.' That it is said, is not to prescribe anything but to give a blank charter. I do not think that there is any thing in this argument.

14. A 'Mobile Court' is intended to be mobile. It is intended to move from place to place and try offences on the spot. The idea is to try espeditiously petty infringements of the provisions of the Act, right in the proximity of the area where the offence has been committed. If it is to function at all, it is quite impracticable to prescribe a particular time and place for each trial and where it should take place. If, under the section, the Government could prescribe, according to its own discretion, any time or place I cannot see why it cannot say that the Magistrate should be entitled to sit anywhere at any time. If it is a case of jurisdiction there is nothing in the section itself to prevent the jurisdiction of the prescribing authority from prescribing to the uttermost extent of its powers. It may be said that such a wide authority given to the Magistratewould cause hardship to the ratepayers, but that is another matter altogether.,

15. The next point argued is as to the procedure adopted. It is argued that under Atricle 22 of the Constitution, every citizen has got a fundamental right to be defended by a lawyer and if a Mobile Court goes about the City of Calcutta, a citizen is not likely to be afforded opportunities of conducting his case properly or appointing his own lawyers. Article 22 of the Constitution does not give a fundamental right of the description alleged. It is stated there that no person who is arrested shall be detained in custody without being informed as soon as may be of the grounds for such an arrest and should not be denied the right to consult his lawyers and to be defended by the legal practitioners of his choice. That has no bearing on the present question. The accused here was not arrested and detained in custody and, therefore, the Article had no application. As a rule of prudence, however, the learned Magistrate presiding over Mobile Courts should, and we are glad to say that it has been done in the present instance, afford an opportunity to the accused to have the services of a lawyer, if he so liked. In fact he took the precaution of asking the accused as to whether he would like to go to his formally constituted Court and there put in his defence through a lawyer but this the accused refused to do In a 'Mobile Court,' in my opinion, as long as a man is allowed to defend himself properly the learned Magistrate will have done his duty. Regard being had to the procedure adopted I do not think that the accused has made out a. ground for our interference.

16. With regard to the other points raised I agree with the conclusions arrived at by My Lord, and have nothing to add.

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