1. The first two petitioners are pleaders practising in the Court of the Munsif at Sherpur and the third petitioner is a Talukdar and merchant of the Sherpur town. In connection with the First General Election of Commissioners of the Sherpur Municipality which was to be held under the Bengal Municipal Act (Bengal Act 15 of 1932) a committee consisting of the Chairman and two Commissioners was appointed under Section 21 of the Act. The said committee appointed the three petitioners as the Revising Authority Under Order 4 of the Orders issued under Notification No. 5717-M, dated 1st, December 1932, to revise the Preliminary Electoral Roll. The complainant, who is a ratepayer of the said Municipality instituted a complaint against the three petitioners and the three members of the committee on 21st January 1933 alleging that certain malpractices had been committed by them in regard to the revision of the Preliminary Electoral Roll. The deposit of Rs. 50 contemplated by Section 34, Clause (c) of the Act was not made at the time. The complaint was filed before an Honorary Magistrate, who was not willing to deal with it and so forwarded it to the Subdivisional Magistrate for action. The Subdivisional Magistrate, Mr. Trivedi, dismissed the complaint under Section 203, Criminal P. C., observing as follows:
No case under Section 28(2), Bengal Municipal Act 15 of 1932 is made out. The Revising Authority is alleged to have rejected the objections. This is not sufficient for showing any offence * * * * * . The cost of Rs. 50 required to be deposited by law was not deposited.
2. The complainant then moved the Sessions Judge, who ordered that a further enquiry should be held on the complaint on the complainant depositing Rs. 50, When the case came back to the file of the Subdivisional Magistrate, a date was fixed within which the complainant was to make the deposit. On the deposit being made when the Sub-divisional Magistrate was about to hold the enquiry, an objection was taken on behalf of the petitioners that they are not persons who can come under Clause (2) of Section 28. The complainant then took up the position that his case as against the petitioners fell within Clause (1) of Section 28. The Subdivisional Magistrate then proceeded to hold a judicial enquiry in which the complainant was to adduce evidence 'for the purpose of proving that the omission of the names of certain rate-payers from the electoral roll was procured deceitfully by the petitioners.'
3. The complainant then examined certain witnesses on his behalf and the Subdivisional Magistrate issued summonses against the petitioners for an offence under Section 28, Clause (1) of the Act. The present rule is directed against the summonses so issued and the proceedings following them. We are of opinion that the petitioners are not persons to whom Clause (1) of Section 28 can possibly apply. They are Revising Authority, who are vested with the powers of holding summary enquiry into claims and objections preferred in connection with the revision of the Preliminary Electoral Roll, |and their orders allowing or disallowing such claims and objections are to be mechanically followed in amending the said Roll (vide Order 12 and 13 of the Notification). The words of the clause 'who by claiming a qualification' apply only to the case of claimant; the words 'by using false documents or by a false declaration or by any other deceitful means procures' indicate a person who practises a deception and thereby obtains from some other individual or body an improper entry, etc. The clause, in our opinion, cannot possibly include the Revising Authority from whom the order is procured. It has been contended before us on behalf of the complainant that the present ease is covered by Clause (2) of Section 28. We are unable to hold that a member of the Revising Authority is either a Municipal officer or servant. We desire also to point out that the words of Clause (c) of Section 34 clearly indicate that the deposit of Rs. 50 is a condition precedent to the entertaining of a complaint; though, of course, a complaint dismissed merely on the ground of such non-deposit may be revived on the deposit being subsequently made, if the complaint is otherwise in order. The Rule is made absolute. The proceedings complained of are quashed and the complaint of the opposite party is dismissed. If the petitioners are on bail, their bail bond will be discharged.