CHAMPALAL LAKHOTIA Vs. S K MONDAL
HIGH COURT OF CALCUTTA
S K MONDAL
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(1.) IN these three revision applications under sections 401 read with section 482 Cr. P. C. Champalal Lakotia is the accused petitioner and S. K. Mondal Borough Health Officer (5) District-II, of the Corporation of Calcutta is the complainant opposite party. In all the three revision cases prayer has been made for quashing criminal proceedings started against the petitioner in the court of 3rd Municipal and Metropolitan Magistrate, Calcutta, under sections 437 (1) (b) read with section 537 of the Calcutta Municipal Act, 1951. The allegation made against the petitioner is that he has committed the offence of using premises No. 2, Ganguly lane for the purpose of a work place run with electricity which is in the opinion of the Corporation dangerous to life, health or property and likely to create nuisance without a licence from the Commissioner. The revision case no. 2058 has arisen out of case No. 4218b of 1977 for such unlawful user for the year 1977, Revision Case No. 2059 has arisen out of case No. 1170b of 1979 for the year 1979 and revision case No. 26 of 1979 has arisen out of case No. 434b of 1979 for the year 1978. In all the three cases in the printed petition of complaint described as application for summons under section 537/437 (1) (b) of the calcutta Municipal Act in the 1st column under the heading 'designation of complainant' S. K. Mondal's name has been mentioned and a prayer has been made for taking cognizance of the offence under Section 190 (1) of the Cr. P. C. Without examining anybody on solemn oath or affirmation the learned Magistrate took cognizance and ordered issue of summons. Under Section 437 (1) (b) of the Calcutta Municipal Act no person shall use or permit or offer to be used any premises for any of the following premises without or otherwise than in conformity with the permission of a licence granted by the Commissioner in this behalf namely, any purpose which is in the opinion of the Corporation dangerous to life, health or property or likely to create a nuisance. Section 537 prescribes punishment of a fine of Rs. 1000/- for an offence under section 437.
(2.) MR. Sanyal the learned advocate for the accused petitioner highlights the description of the complainant as given in the petition of complaint and contends that the executive power of the Corporation in its entirety is vesed in the commissioner under Section 27 of the calcutta Municipal Act. He proceeds on to argue that in exercise of his power under section 28 the Commissioner could file the complaints himself, but he chose not to do so. Mr. Sanyal proceeds on to argue that the Commissioner could not delegate his powder vested in him under section 28 of the Act to anybody except in accordance with section 34 of the Act. Mr. Sanyal contends that S. K, mondal the Borough Health Officer who described himself as complainant in the case did not plead delegation of the power by the Commissioner regarding filing of complaint to him in accordance with the provisions of Section 34 nor dial he prove and such delegation. Mr. Sanyal further contends that there is no indication in the petition of complaint that the complainant was a public servant within the meaning of Section 21 of the i. P. C. and there is nothing in the order sheet of the learned Magistrate to indicate how he was exempted from examining himself on solemn affirmation in support of his complaint. On the basis of the above noted deficiencies in the petition of complaint and lacuna in the procedure followed by the learned Magistrate. Mr. Sanyal contends that the proceeding in the above mentioned cases are liable to be quashed. In support of his first contention namely, incapacity of the Commissioner to delegate his power Mr. Sanyal relies on the decision in the case of Corporation of calcutta v. Bibhabati Basu reported in 73 C. W. N. 786.
(3.) MR. Sekhar Bose the learned advocate on behalf of the respondent on the other hand relies on the decision in the case of S. N. Bose v. Scholar press reported in 1976 Calcutta High court Notes 519 and contends that the law laid down in 73 C. W. N. 786 is not. good law as the said decision overlooked the amendment of Section 34 of the calcutta Municipal Act made in the year 1953. Mr. Bose contends that under section 34 of the Act as amended in 1953 the Commissioner can delegate to any Municipal Officer or servant the power to prosecute anybody. Mr. Sanyal does not dispute the above proposition of law. So the undisputed legal position is that the Commissioner can delegate his power to prosecute anybody to any Municipal Officer or servant in accordance with Section 34 of the Act. But that proposition of law extended to the criminal proceedings under attack cannot salvage them. It has already been noted that the complainant Borough Health Officer did not make any statement in the petition of complaint that he was filing the complaint on the basis of delegation of power made to him by the Commissioner nor did he produce any documentary proof in support of any such delegation of power. The printed petition of complaint is bald and does not contain any statement to the effect that the complainant was a public servant and as such was not liable to be examined on oath or affirmation in support of the petition of complaint. In view of the deficiencies noted above the petition of complaint was on its face made by the person not authorised in this behalf nor did the offence complained of deserve to be taken cognizance of without examination of the complainant.;
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