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Raja Katra Vs. Corporation of Calcutta - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Judge
Reported in1973CriLJ1505
AppellantRaja Katra
RespondentCorporation of Calcutta
Cases ReferredBalraj Kunwar v. Jagatpal Singh
Excerpt:
- n.c. talukdar, j.1. this appeal is at the instance of the accused-appellant m/s. raja katra @ raja katra private ltd. and directed against an order dated the 22nd may, 1969 passed by sri n. k. batabyal, municipal and presidency magistrate, 3rd court, calcutta in case no. 91/c of 1957, convicting the accused-appellant under section 451(1)(a) read with section 537 of the calcutta municipal act, 1951 and sentencing it to pay a fine of rs. 500/- in default whereof distress warrant was to issue.2. the facts necessary for considering the points at issue are put in a short compass. on a complaint made under section 451 (1) (a) of the calcutta municipal act, by n. kundu, prosecuting inspector, corporation of calcutta, the present case was started before the learned municipal magistrate, 3rd.....
Judgment:

N.C. Talukdar, J.

1. This appeal is at the instance of the Accused-Appellant M/s. Raja Katra @ Raja Katra Private Ltd. and directed against an order dated the 22nd May, 1969 passed by Sri N. K. Batabyal, Municipal and Presidency Magistrate, 3rd Court, Calcutta in Case No. 91/C of 1957, convicting the accused-appellant under Section 451(1)(a) read with Section 537 of the Calcutta Municipal Act, 1951 and sentencing it to pay a fine of Rs. 500/- in default whereof distress Warrant was to issue.

2. The facts necessary for considering the points at issue are put in a short compass. On a complaint made under Section 451 (1) (a) of the Calcutta Municipal Act, by N. Kundu, Prosecuting Inspector, Corporation of Calcutta, the present case was started before the learned Municipal Magistrate, 3rd Court, Calcuta against the accused, M/s. Raja Katra Private Ltd., for keeping open a private market at 57, Clive Street, Calcutta without the requisite license for the year ending with the 31st March, 1957. The accused pleaded not guilty and the defence case, inter alia, is that the prosecution case is not maintainable; that it is barred by limitation; that no declaration as required under Section 5 (42) of the Act was made; that no opportunity was afforded to the accused before the alleged declaration; that there has been no proper delegation on the part of the Commissioner; and that in any event the prosecution is premature because the declaration, though it related to the year 1956-57, was confirmed by the Mayor on 17-6-60. Two witnesses were examined on behalf of the Corporation of Calcutta and two on behalf of the defence, and besides that a considerable body of documentary evidence was adduced. As a result of the trial, the learned Municipal Magistrate by bis order dated the 22nd May, 1969, convicted and sentenced the accused as mentioned above. The said order has been impugned and forms the subject-matter of the present appeal.

3. The submissions made by Ml. Sunil Kumar Basu, Advocate (with Mr. Pus-pamoy Das Gupta, Advocate) appearing on behalf of the Accused-Appellant, are of three dimensions. The first dimension relates to a non-conformance to procedure established by law and a denial of the principles of natural justice, ultimately vitiating the declaration made by the Corporation under Section 5 (42) (b) of the Calcutta Municipal Act, 1951. The steps of Mr. Basu's reasoning in this behalf are that such a declaration is necessary under the statute; that no notice or opportunity of being heard was given to the accused prior to the passing of the resolution, declaring the place concerned as a private market; and that, as a consequence, the declaration niBfc under Section 5 (42) of the Calcutta Municipal Act, 1951 has been bad in law and without jurisdiction, ruling out the applicability of Section 451 (1) (a) read with Section 537 of the West Bengal Act XXXIII of 1951. Mr. Basu referred to several decisions to support his contentions and the same will be considered in the proper contexts. The second dimension of Mr. Basu's arguments is that even if the declaration was legally made, it was made much after the cause of action arose and the prosecution was launched, vitiating the same thereby. In this context Mr. Basu relied on Exhibit 'B', the declaration made by the Mayor of Calcutta on the 17th June, I960, and proved by D. W. 1 and he contended that while the prosecution was launched on the 20th June, 1957, the confirmation of the order of declaration was much belated, having been made on the 17th June, 1960, vitiating the ultimate prosecution launched, in the absence of such a declaration. The third and last dimension of Mr. Basu's contention is that the complaint filed by the Corporation of Calcutta is bad for a defective delegation (Exhibit 14). Mr. Basu's submissions in this behalf inter alia, are that the delegation mentioned in Exhibit 14 is to the Deputy License Officer under Section 254 (1) of the Calcutta Municipal Act; that this being not a prosecution envisaged under Section 254 (1), the delegation contained in Exhibit 14 is bad and improper; and that in a proceeding launched on such a delegation, the penalty might have been under Section 541 or 585 of the Calcutta Municipal Act and not under Section 537, inasmuch as the latter Section relates essentially to the charging Section 451 (1) (a) of Act XXXIII of 1951. Mr. Prasun Chandra Ghose, Advocate, appearing on behalf of the Respondent, Corporation of Calcutta joined issue, and contended in the first instance that as the market concerned is a private one coming within the ambit of Sections 450 and 451 of the Act, and is clearly outside the purview of one defined under Section 5 (42) of the Calcutta Municipal Act, 1951, such a declaration is not necessary. In this context the learned Advocate relied on some decisions which will be considered in their proper context. Mr. Ghose next contended in this behalf that a declaration, being unnecessary, there is no question of giving an opportunity to the accused of being heard and consequently there is neither any non-conformance to any procedure established by law nor any contravention of the principles of natural justice, Mr. Ghose submitted in this context that a declaration being unnecessary under the statute in the case of a prosecution relating to a private market, the declaration, ultimately made, though belatedly, would not rendeB the prosecution defective. Mr. Ghose next contended that there has been no defective delegation as alleged or at all and Exhibit 14 is a complete answer thereto. Mr. Ghose's steps of reasoning in this behalf are that the delegation has been rightly made in the name of N. Kundu, Prosecution Inspector and the column concerned mentioned Section 254 (1); that Section 254 (1) refers not only to the procedure for issuing a notice of demand in the form laid down in Schedule VIII but also authorises the Commissioner to prosecute that delinquent concerned, if a prosecution otherwise lies under the provisions of the said Act; and that a prosecution under Section 451 (1) (a) read with Section 537 is a prosecution within the bounds of Section 254 (1) of the Calcutta Municipal Act, 1951. Mr. Sanat Kumar Rakshit, Advocate appearing on behalf of the State submitted that the order of conviction and sentence is bad because of the procedure adopted and because of the denial of the principles of natural justice but he contended nonetheless that the accused-persons should not be acquitted and the matter should ex de-bito justitae be remanded for a proper disposal of the case in accordance with law. This sums up the submissions advanced on behalf of the respective parties.

4. The first dimension of Mr. Basu's argument is one of law viz., that the definition of a market as laid down in Section 5 (42) of Act XXXIII of 1951, enjoins a declaration by the Corporation to that effect and that no notice or opportunity of being heard having been given at all to the accused-appellant, prior to the passing of the resolution declaring the place concerned to be a private market, the ultimate declaration has been bad and improper, vitiating the prosecution started under Section 451 (1) (a) of the Calcutta Municipal Act, based on the footing that the place concerned is a private market duly declared. Mr. Basu relied in this context on the principles laid down in the case of Kamal Singh Rampuria v. Corpn. of Calcutta 0044/1960 : AIR1960Cal172 wherein Mr. Justice D. N. Sinha (as His Lordship then was) held at page 176 that

In my opinion, although the power to 'declare' is not given expressly in any part of the Act or the rules, it must be implied.

The learned Judge proceeded to observe at page 177 that

Has anybody to apply for such a declaration or can the Corporation make such a declaration suo motu?

It was further observed at page 178 that

Therefore it follows that 'declaration' under Section 5 (42) of the said Act necessarily affects the rights of the owner under Article 19(1)(f) and (g) of the Constitution, and in particular it affects his right of property. It seems to me to be violative of the rules of natural justice that such a declaration should be made without notice to the party affected or without hearing his objection.

Mr. Prasun Chandra Ghose submitted that observations made by the Single Bench are distinguishable, having been made in a different context and in any event, the clear and categorical observations made by J. P. Mitter and S. K. Sen, JJ., in the case of Supdt. and Remembrancer of Legal Affairs to State of West Bengal v. Sri Iswar Lakhi Janardan Thakur Jew, reported in 0043/1960 : AIR1960Cal170 , are a pointer the other way. The Division Bench ultimately held at page 172 that

In our view, Section 451 is not concerned with a market as defined under the Act, but is concerned with a market owned and maintained by a private individual without a license from the Corporation. That being so, a prosecution for keeping open such a private market is maintainable under Section 451 read with Section 537 of the Act.

The Division Bench further proceeded to observe that

To say that the owner of a private market can never be prosecuted because his market has not been declared and licensed by the Corporation as a market is to make nonsense of Sections 450 and 451 of the Act.

Basing his contentions on the aforesaid observations, Mr. Ghose submitted that the place at 57, Clive Street, being a private market within the bounds of Section 451, the Corporation of Calcutta is not in airy way bound either in law or by the principles of natural justice to make a declaration under Section 5 (42) of Act XXXIII of 1951 and accordingly the ultimate prosecution cannot be held to be invalid on account of a purported defect in the declaration, which is not at all called for in the present case. Mr. Rakshit appearing on behalf of the State, supported the submission made on behalf of the accused-appellant.

5. The language of the provisions incorporated in the Statute has given rise to two different schools of views but on ultimate analysis, I hold that there is really no conflict between the two decisions in 0044/1960 : AIR1960Cal172 and in 0043/1960 : AIR1960Cal170 . The contentions advanced by Mr. Ghose, overlook in my opinion the other part of the observations made by the Division Bench in the case of Iswar Lakhi Janardan Thakur Jew 0043/1960 : AIR1960Cal170 . Mr. Justice Mitter, who delivered the judgment of the Division Bench clearly observed at page 171 that

In our view the expression private market is descriptive of a bazar which is owned and maintained by a private individual and is not necessarily a market within the meaning of Clause (42). Such a bazar can be a market when it satisfied the conditions laid down in Clause (42).

6. Some meaning and effect must be given to the words 'is not necessarily' as used by the Division Bench. The ultimate ratio of the aforesaid judgment by the Division Bench is that a private market is descriptive of a bazar owned by a private individual and may in certain cases come within the ambit of a market defined under Section 5 (42) of the Calcutta Municipal Act 1951. Their Lordships' findings do not in any way rule out a private market from the ambit of the broader and wider genus of a market defined under Section 5 (42), but pinpoint on the other hand very rightly that with certain trappings such a private market can very well come within the bounds of Section 5 (42). I accordingly hold that the principles laid down in the decision of the Division Bench are not really in conflict with those made by the Single Bench but have been made quite guardedly giving proper effect to the intention of the legislature.

7. The point at issue may now be considered in the light of the principles of Interpretation of Statute. Some meaning and effect must be given to the words used by the legislature in the relevant provisions of the Calcutta Municipal Act, 1951. The interpretation given by Mr. Prasun Chandra Ghosh to the provisions of Section 450 of the West Bengal Act XXXIII of 1951 in general and Section 451 (1) (a) thereof in particular would make the other provisions of the Act redundant and as such is against the intention of the legislature. The principles of Interpretation of Statute rule out redundancy as was observed by Lord Sumner in the case of Quebec Railway Light, Heat and Power Co. Ltd. v. Vandry AIR 1920 PC 181 at p. 186

Effect must be given if possible to all the words used, for the legislature is deemed not to waste its words or to say anything in vain. It is pertinent now to refer in this context to Crawford on 'The Construction of Statutes'.

It has been observed therein that

The object or purpose of all construction or interpretation is to ascertain the intention of the law-makers and to make it effective ... if the courts were permitted to ignore the expressed intent of the legislature, they would invade the province of the legislature and violate the tri-parte theory of Government.

A reference may also be made to the principle known as 'Reddendo Singula Singulis'. Referring to the said principle, it has been observed by Crawford that

It is also well established as a principle of Statutore construction that words in different parts of a statute must be referred to their appropriate connection, giving to each in its place, its proper force and effect, and if possible rendering none of them useless or superfluous even if strict grammatical construction demands otherwise.

Applying therefore the test of the principles of Interpretation of Statute, I ultimately hold that to give effect to Mr. Ghosh's construction of Sections 450 and 451 (1) (a) of the Calcutta Municipal Act, 1951 would unnecessarily circumscribe the intention of the legislature incorporated therein and make the relevant provisions redundant. On an interpretation of the provisions of the Statute and in view of the imprimatur of judicial decisions, I hold ultimately that a declaration is necessary under Section 5 (42) of the Calcutta Municipal Act, 1951 and the same having been made, (a) without giving any opportunity to the Accused of being heard as borne out by the legal materials on the record and (b) in any event belatedly, much after the prosecution was launched, it is bad and repugnant vitiating the proceedings based thereupon.

8. The declaration ultimately made under Section 5 (42) of the Calcutta Municipal Act, 1951 has clearly contravened the principles of natural justice and as such the proceedings based thereupon have been bad in law and improper, vitiating the ultimate order of conviction and sentence, as no notice was served on the accused before the declaration was made and no opportunity was given to it of being heard. The principle of Audi Alteram Partem (hear the other side) is as old as the hills. Lord Reid observed in the case of Ridge v. Baldwin, reported in 1963 (1963) 2 All ER 66 at p. 71 that 'the principle Audi Alteram Partem goes back many centuries in our law and appears in a multitude of judges' judgments of the highest authority'. In the case of Nakkuda Ali v. M. F. de S. Jayaratne, 1951 AC 66, the Privy Council ruled out any opportunity to be given to the aggrieved person for making a representation where the act complained of was an administrative act. The decision of the Privy Council is in the context of Reg. 62 Defence (Control of Textile) Regulations, 1945 and Lord Radcliffe, delivering the judgment of the Court, observed at p. 78 that

no procedure is laid down by the regulation for securing that the licence holder is to have notice of the Controller's intention to revoke the licence, or that there must be any inquiry, public or private, before the Controller acts.

In the case of Durayappah v. Fernando, (1967) 2 All ER 152, the Privy Council however appears to have gone back upon its previous decision and Lord Upjohn delivering the judgment of the court laid down at p. 156 a triple test for the applicability of the principle of Audi Alteram Partem. The same view was taken by Lord Parker, C. J., in the case of In re H. K. (An Infant), (1967) 2 WLR 962 and also by Lord Denning, M. R. in the case of Schmidt v. Secy, of State foi Home Affairs, (1969) 2 WLR 337. The cloud raised over the applicability of the aforesaid principle to different cases has since been lifted by a recent decision of the Supreme Court in the case of A. K. Kraipak v. Union of India : [1970]1SCR457 . Mr. Justice K. S. Hegde, delivering the judgment of the Court observed at pp. 156-157 that

The aim of the rules of natural justice is to secure justice or to put it negatively, to prevent miscarriage of justice... Often times it is not easy to draw the line that demarcates administrative enquiries from quasi-judicial enquiries. Enquiries which were considered administrative at one time are now being considered as quasi-judicial in character. Arriving at a just decision is the aim of both quasi-judicial enquiries as well as administrative enquiries.

It was ultimately observed that

what particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, the frame-work of the law under which the enquiry is held and the constitution of the Tribunal or body of persons appointed for that purpose.

I respectfully agree with the said observations and I hold that 'the frame-work of the law under which the enquiry is held' being the Calcutta Municipal Act, 1951, there is no doubt to the applicability of the principle of Audi Alteram Partem to the present case. Accordingly the failure to give an opportunity to the accused to ob ject and to be heard has contravened the principle of natural justice vitiating the declaration made under Section 5 (42) of the Calcutta Municipal Act, 1951 and rendering the order of convictions and sentence based thereupon, to be bad and improper.

9. The point at issue may also be approached from another standpoint viz., a non-conformance to the procedure established by law vitiating again the ultimate order of conviction and sentence. The proceedings are based on a declaration under Section 5 (42) of the Calcutta Municipal Act, 1951. But the said declaration was made without a notice being duly served on the accused giving him an opportunity thereby of being heard. The declaration therefore is not in accordance with law and the proceedings are not maintainable. In the case of Taylor v. Taylor reported in (1876) 1 Ch D p. 426 Jessel, M. R. observed at p. 431 that

when a statutory power is conferred for the first time upon a court, and the mode of exercising it is pointed out, it means that no other mode is to be adopted ....

Lord Roche approved of the said principles and applied the same in the case of Nazir Ahmed v. The King Emperor, (1936) 63 Ind App 372 : (37 Cri LJ 891) (PC) and observed at pages 381 and 382 that

the rule which applies is a different and not less well recognised rule viz., that where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden.

The Supreme Court in a later decision reiterated the said principles in the case of State of Uttar Pradesh v. Singhara Singh : [1964]4SCR485 ) A. K. Sarkar J. (as His Lordship then was) delivering the judgment of the court observed at p. 361 that

the rule adopted in (1876) 1 Ch. D. 426 is well-recognized and is founded on sound principle. Its result is that if a statute has conferred a power to do an act and has laid down the method in which that power is to be exercised, it necessarily prohibits the doing of the act in any other manner than that which has been prescribed. The principle behind the rule is that if this were not so, the statutory provision might as well not have been enacted.

I respectfully agree with the said observations and I hold that the procedure adopted in the present proceedings in making a declaration, without serving a notice on the accused and thereby without giving an opportunity to it of being heard, is in non-con-formance to the provisions of the statute and is accordingly in non-conformance to the procedure established by law. This has vitiated the proceedings and the ultimate order of conviction and sentence. The first dimension of Mr. Bose's contentions accordingly succeeds.

10. The appeal could have been disposed of on the findings arrived at on the above-mentioned first dimension only but in view of the sustained arguments that took place at the Bar and the intriguing points raised, I am proceeding to consider the other two points also raised by Mr. Bose on behalf of the accused-appellant. This brings me to a consideration of the second dimension of Mr. Bose's arguments as to whether the prosecution is premature because of the declaration being confirmed by the Mayor of Calcutta on the 17th June, 1960, much after the institution of the prosecution on the 28th June, 1957. The answer to this point is short and simple and is in fact ancillary to the answer given to the point raised in the first dimension. If a declaration is not necessary, as Mr. Ghosh contended, there is no scope for the prosecution being premature and a declaration which is otherwise redundant, though given in a defective manner, would not vitiate the proceedings launched. Mr. Ghose's arguments, so far as they go are quite all right. But I have already held in the context of the first dimension of arguments that such a declaration is necessary, being warranted by the statute and based on the principles of natural justice and therefore far from being an irrelevant one, it is an indispensable sine qua non of a proceeding relating to a private market where there is a collection of shops or ware-houses or stalls, exceeding the number of 30 as notified in the relevant notification having the force of the statute. It is pertinent in this context to refer to Exhibit 'B', which is the confirmation by the Mayor of Calcutta bearing the date 17-6-60. The prosecution however started four years before that date and the subsequent declaration cannot validate a posteriori a proceeding which is otherwise invalid. The second dimension therefore of Mr. Bose's argument also succeeds.

11. The point at issue raised in the third dimension of the argument is whether Exhibit 14 brings to light an instance of a defective delegation. The delegation (Exhibit 14) is under Section 34 of Act XXXIII of 1951 and it clearly shows that the then Commissioner, Mr. B. K. Sen, mentioned clearly that it is under Section 254 (1) sanctioning a prosecution for non-payment of other taxes. Sub-clause (d) to Clause (1) of Section 254 relates only to taxes leviable under this Act. Mr. Basu contended therefore that the delegation being under Section 254 (1), the prosecution can be under Section 541 and not under Section 537 read with Section 451 (1) (a). The steps of Mr. Basu's reasoning in this context are that (a) Section 254 (1) appears in Chapter XVII which relates to the recovery of the consolidated rates and other taxes; fb) it is prefaced by the caption 'other taxes'; (c) Clause (1) begins with 'any sum is due' and also 'on account of'; (d) the different sub-clauses relate to taxes whether those are on carriages and animals and for scavenging, for profession, trades and calling or on any other kind of taxes or fee leviable under the Act; and (e) in Schedule VIII of the Calcutta Municipal Act, 1951, laying down the form of notice of demand clearly indicates that ths emphasis is on the recovery of the dues and not on a prosecution with penalty. Mr. Basu submitted that the prosecution enjoined under Section 254 (1) in any event is one und8r Section 541 and in that context he referred to the different sub-clauses of Section 541 (1) dovetailing into the relevant sub-clause of Section 254 (1). Mr. Ghose contended that Mr. Basu's argument overlooks the material provision in Sub-clause (d) to Section 254 (1). The said sub-clause is as follows: 'any other tax or fee leviable under this Act'. Mr. Ghose contended that Sub-clause (d) to Section 541 (1) merely relates to advertisement whether by erection or exhibition and fixation and retention for which license fee is payable. But the same is not incorporated in any one of the Sub-clauses enjoined under Section 254 (1). Mr. Ghose further contended that the prosecution under the provisions of this Act as enjoined under Section 254 (1) is very rightly a prosecution under Section 451 (1) read with Section 537 of the Calcutta Municipal Act, 1951. It is difficult to agree with the submission of Mr. Ghose because it overlooks the material fact that Sub-clause (d) to Section 254 (1) is to be construed ejusdem generis. Sub-clause (a) relates to taxes on carriages and animals, (b) relates to taxes on professions, trades and callings, while (c) relates to scavenging taxes and (d) is the residuary Clause relating to 'any other tax or fee leviable under this Act'. On the rules of interpretation of the statute, the word 'other' cannot envisage any and every other tax under the sun but relates only to relevant taxes of the same nature and kind as described in the earlier provisions. Some meaning must be given to the word 'any other' in Sub-clause (d) to Section 254 (1). Even Section 541 (1) (d) relates to advertisement matters. Other Sub-clauses to Section 254 (1) are included within the three charging sub-clauses under Section 541 (1) leading on to an ultimate penalty under Section 541 and not under Section 537. It is necessary to approach the case, for the purpose of a proper interpretation, from another standpoint. A reference in this context has been made by Mr. Basu to the case of Superintendent and Remembrancer of Legal Affairs, West Bengal v. Corpn. of Calcutta : 1967CriLJ950 . Chief lustice R. Subba Rao delivering the majority judgment clearly made a distinction between fines realised under Section 541 and under Section 537 of the West Bengal Act XXXIII of 1951. the first going over to the Corporation while the other being leviable to the State. This marked distinction is a pointer to the intention of the legislature as enjoined under Section 254 (1) wherein the emphasis is on sums being due and the clear attempt on the part of the prosecutor to realise the same. The Corporation of Calcutta has been given very wide alternatives under the Calcutta Municipal Act, 1951 varying with the nature of the subject-matter in dispute. Mr. Basu at one stage insisted on the interpretation of money dues on the basis of the heading of the Chapter XVII of the Calcutta Municipal Act, 1951 as the said heading is 'Recovery of the consolidated rates and other taxes.' Although I ultimately agree with him on other grounds, this interpretation however based on the heading or the marginal notes in a Statute is not acceptable. Lord Mac-Naughten observed in the case of Balraj Kunwar v. Jagatpal Singh, (1903) ILR 26 All 393 (PC) that

it is well settled that the marginal notes cannot be referred to for the purpose of construing the Act.

I respectfully agree with the same and I hold that the heading or the marginal notes cannot control the meaning of the body of the Sections if the language thereof is clear and unambiguous. But apart from the said reasons, Mr. Basu also contended that a distinction has been made by the legislature between Sections 537 and 541 and that the prosecution envisaged under the statute as referred to under Section 254 (1) is clearly directed to a prosecution under Section 541 (1) and not under Section 537 as Mr. Ghose urged. I agree with the submissions made in this behalf by Mr. Basu and I ultimately hold that the delegation given in Exhibit 14 being clearly under Section 254 (1) cannot lead on to a prosecution under Section 451 (1) (a) read with Section 537 of Act XXXIII of 1951. Such a delegation is defective and de hors a prosecution enjoined under Section 537. The third and last dimension also of Mr. Basu's contentions accordingly succeeds.

12. The only point that now abides my consideration is whether, at this stage, there should be an order of remand to the Court below for a proper disposal of the case in accordance with law. Mr. Prasun Chandra Ghosh, Advocate for the Respondent and Mr. Sanat Kumar Rakshit, Advocate, appearing on behalf of the State, submitted that the matter may be sent back. This was opposed by Mr. Basu, inter alia on the ground that this will very much protract an already long-drawn case. There must be some finality to justice and to send back the case that started so far back as in 1957, would be only to launch the accused on an Odyssey of fresh hazards and that too after about 18 years. The test is one of prejudice and the same stands in the way of sending the case back to the Court below. A further difficulty stands in the way of remand inasmuch as the point at issue also is whether the order of conviction and sentence under Section 451 (1) (a) read with Section 537 of the West Bengal Act XXXIII of 1951 is sustainable because the prosecution under Section 451 (1) (a) was premature, in the absence of a proper delegation given by the Commissioner of the Corporation of Calcutta in this behalf. The prosecution as launched being unwarranted and untenable, it is not for this Court to give a direction that the case should again start from the stage from where it began. It is the discretion of the complainant to do so, if so advised and not the duty of the Court to give a mandatory direction that the case should be re-tried. This ancillary branch of submission for a remand at this stage therefore fails.

13. Before I part with the case, I must place on record my appreciation of the manner in which the case was argued by the learned Advocates appearing on behalf of the respective parties; they spared no pains to assist the Court to come to a proper decision.

14. In the result, I allow the appeal, set aside the order dated 22nd May, 1969, passed by Shri N. K. Batabyal, Presidency and Municipal Magistrate, Third Court, Calcutta in Case No. 91/C of 1957, convicting the accused appellant under Section 451 (1) (a) read with Section 537 of the Calcutta Municipal Act, 1951 and sentencing it to pay a fine of Rs. 500/- in default whereof distress warrant was to issue; and I direct that the fine, if paid, is to be refunded.


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