Decided on December 22,1970



- (1.) THIS Rule is at the instance of the accused-petitioner, Kumar P. N. Tagore, against an order dated the 9th June, 1969, passed by Sri S. N. Chakraborty, magistrate 1st Class, Barrackpore, rejecting the petitioner's prayer that the complaint is time-barred and for quashing the proceedings, being case no. C/1766 of 1968, pending against him under section 240 (1) (b) read with section 500 of the Bengal Municipal act, 1932.
(2.) THE point involved is one of limitation and the facts leading on to the same can be put in a short compass. The complainant, who is the Law assistant of the Barrackpore Municipality filed on 19. 6. 68 a complaint dated the 15th June, 1968, before the learned sub-divisional Magistrate, Barrackpore under Section 240 (1) (b)/500 of the bengal Municipal Act, 1932, against the accused, Kumar P. N. Tagore, of Tagore villa, Baranagar alleging inter alia that the accused had erected and set up an obstruction and encroachment over the main municipal drain (Dantia Khal) without the permission of the administrator of the Municipality that the accused was accordingly served with a notice under section 240 (1) (b)of the Bengal Municipal Act, 1932 on the 7th December, 1967, to remove the obstruction and encroachment within 15 days from the receipt of the notice but he did not comply with the same and thereby committed the above-mentioned offence; and that the cause of action had arisen on the 22nd December, 1967. The learned Sub-Divisional magistrate, Barrackpore, thereupon took cognizance and summoned the accused under section 240 (1) (b)/500 of the bengal Municipal Act, 1932 and fixed 8. 8. 1968 as the next date. An application was filed on behalf of the accused on 8. 8. 1968 for adjournment and for dispensing with his personal appearance. On an inter-mediate date viz. , on 19. 9. 1968, an application was filed by the accused for personal exemption due to his illness, and the learned Sub-Divisional Magistrate allowed the prayer for personal exemption for the day. The case was sent to the file of Sri S. N. Chakraborty, magistrate, 1st Class, Barrackpore for disposal. The next date fixed was 9. 10. 1968. On the 24th September, 1968 an application under section 561a of the code of Criminal Procedure was filled on behalf of the accused before the transferee magistrate praying that the complaint filed was misconceived and without any cause of action and therefore should be dismissed. It was inter alia stated in the said petition that the proceedings are barred by limitation having been initiated after the stipulated period provided for under section 533 of the Bengal Municipal act, 1932 and that the same is also not maintainable on merits. The application was set down for hearing on the next date and it was further directed on the next date by an order dated the 27th September, 1968 that the accused would also be examined under section 242 Cr. P. C. The case was adjourned and the next date fixed was on 9. 11. 68. A prayer for adjournment was also filed on that date and the learned trying magistrate being on leave, the case was fixed on 14. 12. 68 for orders. On 6. 1. 69 the learned Magistrate heard both the parties on the maintainability of the present proceedings and fixed 11. 1. 69 for further hearing. On 11. 1. 69 the learned trying magistrate heard both the parties at length and held that the notice having been served on the accused on 7. 12. 67. the complaint was filed within the statutory period of six months; that the prosecution being sanctioned by the administrator of the Municipality and filed by Law Assistant under orders of the Administrator, was maintainable in law; and that the case shall accordingly proceed in accordance with law. After several dates, three witnesses were examined on behalf of the prosecution and on 24. 5. 69, P. W. 3 Becharam samanta was examined. In his evidence, p. W. 3 stated that he served the notice (Ext. 2) on the accused, Kumar P. N. Tagore, who received the notice after signing the acceptance (Ext. 2/5) and the same was later on submitted by him to the Municipality (Ext. 2/4 ). The learned defence lawyer pointed out to the learned trying Magistrate at that stage that in view of the said disclosure, the petition of complaint which was filed on the 19th June, 1968, was barred by limitation. A reference was also made to some case-law and the learned magistrate fixed 31. 5. 69 for further hearing when both the parties were heard against and ultimately on 9. 6. 69 the learned trying Magistrate rejected the petitioner's prayer that the complaint was barred by limitation and directed that the case shall continue. This order has been impugned and forms the subject-matter of the present Rule.
(3.) MR. Nalin Chandra Banerjee, advocate (with Mr. Arun Kumar mukherjee, Advocate), appearing in support of the Rule on behalf of the accused-petitioner, made a short submission which is one of law and relates to limitation. Mr. Banerjee contended that the date of service of the notice (Ext. 2) being 5. 12. 67 as borne out by the evidence of P. W. 3, the process-server and exhibit 2/5, the learned trying magistrate had clearly erred in holding that the complaint was not time-barred on the purported ground that the starting point of limitation is 7. 12. 67, the date of service of the registered notice on the accused as borne out by the postal acknowledgment receipt (ext. 2/4 ). Mr. Banerjee submitted that the petition of complaint being thus time-barred on the date when it was presented viz. , the 19th june, 1968, the learned Sub-divisional magistrate, Barrackpore was not legally competent to take cognizance thereof and the resultant proceedings based thereupon are not maintainable in law. In support of his contention Mr. Banerjee referred to several cases which will be considered in their proper context. Mr. Pranab Kumar Chatterjee, advocate (with Mr. Mohanlal Dey and miss Lovely Sinha Roy, Advocates), appearing on behalf of the complainant-opposite party joined issue and contended that the learned Magistrate's finding that there has been no limitation is quite a proper one because in law the date of limitation shall run from the 7th December, 1967, which is the date of service of the registered notice. Mr. Balai Chandra Roy, Advocate and mr. Amitava Dutt, Advocate, who were permitted to appear on behalf of the de facto complainant, the diamond Products Ltd. , submitted that the objection raised by Mr. Banerjee on the ground of limitation to the maintainability of the proceedings in the court below is unwarranted and untenable because under section 3 (35)of the General Clauses Act, 1897, 'month' shall mean a month reckoned according to the British Calendar. Mr. Roy further contended that accordingly a month does not constitute a period of 30 days only and the period of limitation of 6 months as provided for under section 533 of the Bengal Municipal act, 1932 is not a period of 180 days. Mr. Chatterjee and Mr. Roy both referred to some cases which will be considered in their proper context.;

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