Debabrata Mookerjee, J.
1. This is a reference made by an Additional Sessions Judge of 24-Parganas recommending that certain proceedings under Section 453/500, Bengal Municipal Act be not treated as proceedings in prosecution of the person proceeded against.
2. A complaint was filed before the Sub-divisional Officer, Barrackpore, by the Commissioners of the Barrackpore Municipality that a certain nuisance had been caused by the accused person Labanya Prova Debi. Information of the nuisance having been received by the Commissioners and the Commissioners being obviously satisfied that the nuisance existed, served a notice on the lady requiring her to remove it within a specified time.
There having occurred failure to comply with the requirements of the notice, the Commissioners of the Municipality caused a complaint relating to such nuisance to be made before the learned Sub-divisional Officer; the latter on receipt of it directed the issue of summons on the lady to appear before him and when she appeared she was examined under Section 242, Cr. P. C. and the case was fixed for hearing evidence.
On 25-2-1955 it was represented on behalf of the lady that the procedure adopted by the learned Magistrate was mis-conceived and that the proceedings under Section 453 could not properly be described as proceedings in prosecution, with the necessary consequence that the lady could not be treated as an accused person and there could be no question of examining her under Section 242, Cr. P. C.
The learned Magistrate made an order dealing with this objection with which the person proceeded against was evidently dissatisfied and she took the matter before the learned Additional Sessions Judge who has made this reference with the observation that the petitioner before him should not have been examined under Section 242 and that she could not have been treated as an accused, nor could 'cognizance' be taken of the 'complaint' made against her by the Municipality.
3. It seems to me that the trial Magistrate made the position quite clear in the order which he made on 22-4-1955 in course of which he pointed out that he had merely been holding an enquiry as to whether there was still the nuisance in existence as alleged by the Municipality and whether action was called for under Section 453, Bengal Municipal Act. In view of this observation I think the learned referring Judge might have spared himself the pains of a reference under Section 438, Criminal P. C.
4. Mr. Banerjee appearing on behalf of the State has argued that the question is more or less academic in view of the learned Magistrate's observation to which I have referred to go into the questions raised by the Additional Sessions Judge in his letter of reference. I am inclined to agree with this view.
5. Section 451, Bengal Municipal Act provides that it is the duty of every Municipal Officer to give information about the existence of a nuisance under the Chapter to the Commissioners. By Section 452 the Commissioners have been given the power of satisfying themselves about the existence of the nuisance and if they are so satisfied, then to issue a notice on the author of the nuisance to remove it or take such order with his property as may be sufficient for the purpose of removing and preventing the recurrence of the nuisance.
It is also provided that under certain contingencies the Commissioners themselves will have power to remove the nuisance or to prevent its recurrence in future. Section 453 then provides that if after requisition made under Section 452, the person served with the notice fails to comply with any of the requirements thereof within a specified time or if the nuisance though removed after the service of notice, is likely in the opinion of the Commissioners to recur, the Commissioners shall cause a complaint relating to such nuisance to be made before a Magistrate; and such Magistrate shall thereupon issue summons requiring the person on whom the notice was served to appear before him.
Sub-section (2) of the section provides that the Magistrate has to be satisfied about the existence of the alleged nuisance or about the likelihood of its recurrence and if so satisfied it then becomes the duty of the Magistrate to order the author of the nuisance requiring him to comply with all or any of the requirements of the notice issued by the Municipality or to take order with his property by which the nuisance may be removed or the recurrence prevented.
Power is also given to the Magistrate to make an order directing the Commissioners to remove or prevent recurrence of the nuisance. Then follows Sub-section (3) and the Magistrate is given power to adjourn the hearing or further hearing of the case for purposes of inspection, investigation, etc., in respect of the nuisance alleged.
Section 500 provides penalty for offences under the Act and a penalty may be imposed under Section 453 (2)/500. It is therefore to be observed that it is only Section 453 (2) that is made a penal offence. The stage that comes before the stage represented by Section 453 (2) appears to be a stage antecedent to the commencement of proceedings of a criminal nature.
It is only after an order made by the Magistrate is evaded or disobeyed that the question arises of punishment to be inflicted upon the person proceeded against. In fact the Magistrate here, as I have already indicated, pointed out that he was merely holding enquiries as to whether there was still the nuisance existing as alleged by the Municipality and whether at all he should take action under Section 453 (2), Bengal Municipal Act.
6. In these circumstances, it must be held that the proceedings in prosecution have not yet commenced and they will commence only when the Magistrate takes action under Section 453(2) of the Act.
7. The result therefore, is that the reference is disposed of as above. Let the matter now proceed before the Magistrate.
8. Let the records be returned as early as possible.