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Sishir Kumar Mitter Vs. Corporation of Calcutta - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1926Cal786,96Ind.Cas.649
AppellantSishir Kumar Mitter
RespondentCorporation of Calcutta
Excerpt:
calcutta municipal act (iii b.c. of 1923), section 537 - criminal procedure, code (act v of 1898), section 248-withdrawal of complaint--sufficient ground, whether necessary. - .....rule or bye-law made thereunder; and (d) obtain such legal advice and assistance as they may from time to time think it necessary or expedient to obtain for any of the purposes referred to in the foregoing clauses of this section, or for securing the lawful exercise or discharge of any power or duty vesting in or imposed upon the corporation or any municipal officer or servant.'4. section 248 of cr.p.c., is as follows: 'if a complainant, at any time before a final order is passed in any case under this chapter, satisfies the magistrate that there are sufficient grounds for permitting him to withdraw his complaint, the magistrate may permit him to withdraw the same, and shall thereupon acquit the accused.'5. it is argued on behalf of the petitioner that the calcutta municipal act being.....
Judgment:

1. In this case a Rule was issued calling upon the Municipal Magistrate of Calcutta and the Chief Executive Officer of the Corporation of Calcutta to show cause why the orders, dated the 5th and the 26th November, 1925, passed by the Municipal Magistrate, should not be set aside and the case, instituted against the petitioner allowed to be withdrawn.

2. The facts, shortly stated, are as follows: In or about the month of June, 1925, the Corporation of Calcutta prosecuted the petitioner, Sishir Kumar Mitter under Sections 488-386(1a) of the present Calcutta Municipal Act for using premises No. 35-1, Balligunge Circular Road, for manufacturing surkhi without a license for 1924-25. The case came on for hearing on the 26th June, 1925, when the examination of Dr. R.R. Bhuttacharya, Sanitary Inspector on behalf of the Corporation was proceeded with. After Dr. Bhuttacharya had been partially cross-examined, the case was adjourned to the 9th July for further hearing. On the last mentioned date Dr. Bhuttacharya was further cross-examined and the hearing was adjourned to the Kith July. The next effective hearing was on the 5th August, 1925, when the case for the Corporation was closed. On the 27th August, 1925, the accused made his statement to the Court. On the 9th September, 1925, the accused called evidence in support of the defence. Evidence was closed on behalf of the defence on the 15th October, 1925, and the case thereafter stood over for arguments to be addressed to the Magistrate. A fresh adjournment was obtained by the Pleader for the defence to enable him to prepare his argument and thehearing was fixed for the 5th November, 1925. On the last mentioned date Dr. Bhuttacharya on behalf of the Corporation filed the following application before the Magistrate: 'Under orders from the Chief Executive Officer, the undersigned prays that the Court may be pleased to allow the withdrawal of the above case, as the party has removed the mill from the place.' This application was rejected by the Magistrate on the same date and the hearing of the case was adjourned to the 26th November, 1925. On this date the accused was absent and thereupon the Magistrate recorded the following order: 'Corporation Pleader says that in view of the defiant attitude of the accused at the trial, he leaves the matter in the hands of the Court. Accused absent though he was directed to appear to-day. Issue warrant of arrest (bail--Rs. 500) for 17th December.'

3. Against the said orders of the 5th and the 26fch November, 1925, the present Rule is directed and it is contended on behalf of the petitioner that inasmuch as the Chief Executive Officer had asked for the withdrawal of the case under Section 537 of the Calcutta Municipal Act, the learned Magistrate ought to have permitted the withdrawal of the prosecution and had no jurisdiction to pass the orders complained of. The argument is based on the suggestion that Section 537 of the Calcutta Municipal Act controls, in cases of prosecution by, the Corporation of Calcutta, the provisions of Section 248 of the Cr.P.C. Section 537 of the Calcutta Municipal Act runs as follows: 'The Corporation may, (a) institute, defend, or withdraw from legal proceedings under this Act or under any rule or bye law made thereunder (b) compound any offence against this Act or against any rule or bye-law made thereunder which, under any enactment for the time being in force, may lawfully be compounded; (c) admit, compromise or withdraw any claim made under this Act or under any rule or bye-law made thereunder; and (d) obtain such legal advice and assistance as they may from time to time think it necessary or expedient to obtain for any of the purposes referred to in the foregoing clauses of this section, or for securing the lawful exercise or discharge of any power or duty vesting in or imposed upon the Corporation or any Municipal officer or servant.'

4. Section 248 of Cr.P.C., is as follows: 'If a complainant, at any time before a final order is passed in any case under this Chapter, satisfies the Magistrate that there are sufficient grounds for permitting him to withdraw his complaint, the Magistrate may permit him to withdraw the same, and shall thereupon acquit the accused.'

5. It is argued on behalf of the petitioner that the Calcutta Municipal Act being an Act, later in point of time than the Cr.P.C. and as the bill which afterwards became the Calcutta Municipal Act of 1923 had been introduced in the Bengal Legislative Council, with the previous sanction of the Governor-General under the provisions of Section 80A of the Government of India Act, it must now be taken that the provisions of Section 248 of the Cr.P.C. had been modified in their application in cases of proceedings instituted by the Corporation of Calcutta by the provisions of Section 537 of the Calcutta Municipal Act. In answer to the present Rule the Chief Executive Officer of the Corporation through his learned Vakil contended before us that Section 248 of the Cr.P.C. had not been affected as contended for on behalf of the petitioner and further that the Corporation did not now want to withdraw the case against the petitioner but desired that the proceedings should be brought to their natural termination.

6. It is perfectly true that the Calcutta Municipal Act is a piece of legislation which was introduced in the local Legislature with the previous sanction of the Governor-General and that it is in point of time an Act later than the Cr.P.C., but it does by no means follow that the provisions of Section 248 of the Cr.P.C. have been affected or abrogated in cases or proceedings by the Corporation by the provisions of Section 537 of the Calcutta Municipal Act. It is to be remembered that the Corporation is a creature of Statute and that specific power to institute, defend, or withdraw from legal proceedings was needed and had to be provided for, under and by the Statute which called the Corporation into existence. Section 537 of the Calcutta Municipal Act, as we read it, is merely an enabling section and the powers given thereunder to do the various acts specified therein can, in our opinion, only be exercised in accordance with the provisions of the Cr.P.C. Section 248 of the Cr.P.C. enables a complainant at any time before a final order is passed by the Magistrate to apply to the Magistrate for withdrawal of a case; it is only when, he satisfies the Magistrate that there are sufficient grounds for permitting him to withdraw his complaint that such permission is granted. It follows, therefore, that there is no absolute power of withdrawal and that, before a withdrawal can be permitted, there must be sufficient grounds to the satisfaction of the Magistrate.

7. In our opinion, on the facts of this case there were abundant grounds entitling the Magistrate to refuse to permit the withdrawal of the case against the petitioner. The Magistrate was obviously right in declining to allow himself to be guided by the caprice of the complainant. We have examined the record for ourselves and are satisfied that there are no grounds whatsoever, of law or of fact, for our interference in this matter at the present stage.

8. The result, therefore, is that this Rule must stand discharged.


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