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Superintendent and Remembrancer of Legal Affairs Vs. Harakali Biswas and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Reported inAIR1931Cal435
AppellantSuperintendent and Remembrancer of Legal Affairs
RespondentHarakali Biswas and ors.
Cases ReferredAjodhya Nath v. Raj Krista
Excerpt:
- .....nath v. raj krista [1903] 30 cal. 481, and we are not disposed to follow it, in so far as it deals with the point raised in the present case.2. the result is that the order of acquittal must be set aside and the case sent back [to the learned magistrate for further enquiry, whether the accused in fact committed the offence alleged against them tinder section 76-b. if he comes to the conclusion that they have committed that offence then it will be his duty to convict them in spite of the fact that the provisions in the latter part of section 6 and in section 80 have not been complied with.
Judgment:

1. This is an appeal by the Local Government against an order of acquittal made by the learned Sub-divisional Magistrate of 24 Parganas. Four accused were charged under Section 76-B, Bengal Embankment Act 2 of 1882, the evidence being that they had erected, or added to an existing embankment, in an area covered by a notification under Section 6 of the Act. The learned Magistrate did not decide whether the accused had in last so erected or added to such an embankment, because he came to the conclusion that the accused could not be convicted under the section because the notification which under Section 6 has to be made in the Calcutta Gazette had not been published in the mode prescribed by the latter part of that section and S. 80 of the Act. Specific notice had, in fact, been served upon the accused as appears in Ex. 2 and they had been told to remove the embankment. Further, it appears that this was not the first time that they had built the embankment nor the first time that it had been removed by order of the Government. In our opinion this case is covered by the decision of Richardson and Shamsulhuda, JJ., in the case of Lakshmi Kanta Hazra v. Emperor [1919] 46 Cal. 825 with which decision we agree. The provisions of the latter part of Section 6 and S. 80 for publication of the notification are merely directory and not mandatory. It is true that the decision of Mitter and Morris, JJ., in Goberdhone v. Queen-Empress [1885] 11 Cal. 570 is in favour of the view expressed on behalf of the accused. But that decision, in so far as it dealt with another point under the Act, has been overruled by the decision in Ajodhya Nath v. Raj Krista [1903] 30 Cal. 481, and we are not disposed to follow it, in so far as it deals with the point raised in the present case.

2. The result is that the order of acquittal must be set aside and the case sent back [to the learned Magistrate for further enquiry, whether the accused in fact committed the offence alleged against them tinder Section 76-B. If he comes to the conclusion that they have committed that offence then it will be his duty to convict them in spite of the fact that the provisions in the latter part of Section 6 and in Section 80 have not been complied with.


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