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Panchu Gopal Mondal and ors. Vs. Corporation of Calcutta and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Case NumberCriminal Revn. No. 223 of 1952
Judge
Reported inAIR1953Cal410
ActsCalcutta Municipal Act, 1923 - Section 363; ;Code of Criminal Procedure (CrPC) - Section 439
AppellantPanchu Gopal Mondal and ors.
RespondentCorporation of Calcutta and ors.
Appellant AdvocateM.M. Sen and ;Surathi M. Sanyal, Advs.
Respondent AdvocateMonmohan Mukherjee, Adv.
Cases ReferredKrishen Doyal v. Corporation of Calcutta
Excerpt:
- .....revision is directed against an order passed by a magistrate appointed under the provisions of the calcutta municipal act on an application under section 363 of that act.2. before going into the merits of the application in revision it is necessary to dispose of a preliminary objection raised on behalf of the opposite party, the corporation of calcutta. the objection is that the order passed by a magistrate dealing with an application under section 363, calcutta municipal act, is not subject to revision under section 439, criminal p.c.3. the decision of this objection depends on the answer to the question whether a magistrate dealing with an application under section 363, calcutta municipal act is a criminal court. if it is, this court has jurisdiction under section 439, cr. p.c. to.....
Judgment:

Das Gupta, J.

1. This application for revision is directed against an order passed by a Magistrate appointed under the provisions of the Calcutta Municipal Act on an application under Section 363 of that Act.

2. Before going into the merits of the application in revision it is necessary to dispose of a preliminary objection raised on behalf of the opposite party, the Corporation of Calcutta. The objection is that the order passed by a Magistrate dealing with an application under Section 363, Calcutta Municipal Act, is not subject to revision under Section 439, Criminal P.C.

3. The decision of this objection depends on the answer to the question whether a Magistrate dealing with an application under Section 363, Calcutta Municipal Act is a criminal Court. If it is, this Court has jurisdiction under Section 439, Cr. P.C. to revise in suitable cases orders passed by the Magistrate. If it is not a criminal Court, this order cannot be revised under Section 439, Cr. P.C. whether or not it might be subject to revision under other provisions of law.

4. That a Magistrate dealing with an application under Section 363, Calcutta Municipal Act is .a 'Court' cannot be seriously disputed and it has not been disputed before us. In exercising powers under Section 363, Calcutta Municipal Act the Magistrate is, exercising judicial functions and not executive or administrative functions. This conclusion necessarily follows from the manner in which the power has to be exercised, viz., the provisions as regards hearing of the party against whom relief is sought by the Corporation. It is also clear that in exercising such judicial functions the Magistrate is acting as only part of the machinery constituted by the sovereign authority of the State for exercise of judicial functions. Without attempting the difficult task of defining a 'Court', I think it can safely be laid down that an authority exercising judicial functions judicially as a part of the machinery which the State has set up for the exercise of judicial functions is a Court. My conclusion therefore is that the Magistrate appointed under the Calcutta Municipal Act acts as a Court in dealing with an application under Section 363, Calcutta Municipal Act.

5. A more difficult question is whether the Magistrate thus acting as a Court is a criminal Court. In -- 'Bhadreswar Majhi v. Corporation of Calcutta', AIR 1952 Cal 683 (A) it was held on a consideration of previous authorities of this Court, that so far as this Court is concerned the law must be taken to be settled that the disposal of an application under Section 363. Calcutta Municipal Act is not trial for an offence. I was a party to that decision and nothing has been said before us to induce us to differ from that decision.

6. If the only function of a criminal Court were the trial of offences, we would therefore have been bound to hold that the Court of the Magistrate dealing with an application under Section 363, Calcutta Municipal Act is not a criminal Court. The functions of a criminal Court are not however limited to the trial of offences. The Criminal Procedure Code empowers certain criminal Courts to exercise functions wholly unconnected with the trial of offence Thus, under Sections 144 and 145, Cr. P.C. a criminal Court takes action to prevent breach of the peace without trying any person for any offence. Under Section 133 of the Code, a criminal Court takes action to remove unlawful obstructions or nuisance from public places, to prohibit or regulate trades or occupations injurious to health or physical comfort, to prevent the construction of any building or structure likely to occasion conflagration or explosion, and on a number of other matters, for the purpose of ensuring safety or convenience of the public. Other provisions entrusting to criminal Courts functions not connected with the trial of offences are contained in Sections 107, 108, 109 and 110, Criminal P.C.

7. It is obvious therefore that the fact that the proceedings under Section 363, Calcutta Municipal Act are not trials for offences is no reason to think that the Court in dealing with these proceedings is not a criminal Court.

8. From what has been said above, it is clear that the functions performed by a Magistrate in proceedings under Section 363, Calcutta Municipal Act are very similar in nature to the functions of a criminal Court under Section 133, Cr. P. C. Remembering further that the object of the Corporation of Calcutta in starting proceedings under Section 363, Calcutta Municipal Act is not the recovery of any property, or the enforcement of a right, for the advantage of the Corporation authorities -- either of which objects is ordinarily to be found in all proceedings of a civil nature -- the reasonable conclusion, in my judgment appears to be that the Magistrate is discharging the functions of a criminal Court in dealing with an application under Section 363, Calcutta Municipal Act. Mention should be made of certain observations on the question now before us in two cases of this Court. In --'Ram Gopal v. Corporation of Calcutta' : AIR1925Cal1251 , when the question was raised whether the Court of a Municipal Magistrate dealing with an application under Section 363, Calcutta Municipal Act is an inferior Court within the meaning of Section 439, Cr. P.C., Sanderson C.J. expressed his view in these words.

'I think it may be said that the Municipal Magistrate appointed to deal with offences against the Calcutta Municipal Act is a Court constituted under a law other than the Code for the time being in force, and comes within S. 6. Consequently, I am not prepared to hold that Sections 435 and 439. Criminal P.C., do not apply to these proceedings.'

Apart from the fact that the view was expressed by the learned Chief Justice in the negative form, it is to be noticed that this observation was followed by words which take away from the authoritative value thereof. The words are these:

'This point, however, is not of any real importance, for in my judgment the order of the Municipal Magistrate was a judicial order, and it was made by him either in the exercise of criminal jurisdiction or in the exercise of civil jurisdiction, and this Court would have jurisdiction to interfere by way of revision under one Code or the other.'

The decision in -- 'Ram Gopal Goenka's case'. (B), is not therefore an authority on the question now before us. Two years later, in --'Krishen Doyal v. Corporation of Calcutta' : AIR1927Cal509 , Suhrawardy and Cammiade JJ. had before them the question whether the party against whom orders of demolition of structures are sought, was an accused person within the meaning of the Code of Criminal Procedure. They came to the conclusion that he was not an accused. In that connection the Court made observations which have been relied upon by the learned Advocate for the Corporation of Calcutta before us as an authority for the proposition that Section 439, Cr. P.C. does not apply to these proceedings. I find, however, that what Suhrawardy and Cammiade JJ. stated about the view of Sanderson C.J. in -- 'Ram Gopal Goenka's case', (B) is that that case was no authority for the broad proposition that because the Municipal Magistrate happens to be a Presidency Magistrate, the Code of Criminal Procedure will apply to all proceedings before him. Their Lordships had no occasion to consider or decide whether Section 439, Cr. P.C. applies to these proceedings. What was pressed before the Court on that occasion on the authority of -- 'Ram Gopal Goenka's case' (B) was that the Criminal Procedure Code would apply to proceedings under Section 363, Calcutta Municipal Act, in all its details and that submission was negatived by their Lordships. In my judgment -- 'Jalan's case' is no authority for the proposition that Section 439, Cr. P.C. does not apply to proceedings under Section 363, Calcutta Municipal Act.

9. I have therefore come to the conclusion for the reasons earlier mentioned that the Magistrate dealing with an application under Section 363, Calcutta Municipal Act is an inferior criminal Court within the meaning of Section 439, Cr. P.C. and so any order passed by a Magistrate in such proceedings is subject to the revisional jurisdiction of this Court under Section 439, Cr. P.C.

10. Coming now to the merits of the case, the question we have to consider is whether the Magistrate proceeded in an irregular or illegal manner in omitting to give notice upon the present petitioners who claim to be occupiers of the premises sought to be demolished. It is now settled law that before an order of demolition is passed, the Magistrate must give the occupiers as well as the owners sufficient opportunity to show cause against the proposed order. The petitioners' case is that they have been occupying these premises since 1939. This statement is supported by an affidavit. There is no counter-affidavit filed on behalf of the Corporation of Calcutta. Indeed there is no attempt by the Corporation of Calcutta to challenge the correctness of the case that these three persons were occupiers at the relevant date of the case in question. The papers on the record of the proceedings in the Court of the Municipal Magistrate indicate that no attention was directed at all to the question as to who the occupiers were. Notices were issued on the owners of the land and also the owners of the structures, the case of the occupiers being entirely overlooked. In these circumstances I think it is reasonable to hold that the case of the petitioners that they were occupiers of the premises at the relevant date is true, and consequently they were entitled to notice of the proceedings for demolition.

11. Admittedly, no such notice was served and the petitioners got no opportunity to present their case before the Municipal Magistrate. We accordingly set aside the order passed by the learned Magistrate and direct the Magistrate to dispose of the proceedings in accordance with law after giving these petitioners a proper opportunity as required under Section 363, Calcutta Municipal Act.

12. The Rule is accordingly made absolute.

Debabrata Mookerjee, J.

13. I agree.


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