- (1.) These two rules were issued at the instance of the Corporation of Calcutta in two oases in which two managers of Govt. Stores were proceeded against before the municipal Magistrate of Calcutta under Section 421, Calcutta Municipal Act--Act III [3] of 1923.
(2.) It appears that several maunds of whole-barley were seized from these two Government Stores and the finding of the learned Magistrate, after an elaborate discussion of all the evidence, is that these were unwholesome, unfit for human consumption and also injurious to public health. The learned Magistrate however, felt himself bound by two decisions, namely, the decision of the Judicial Committee in the case of The Province of Bombay v. Municipal Corporation of the City of Bombay, 73 I. A. 271 : (A. I. R. (34) 1947 P. C. 34) and that of this Court in the case of The Corporation of Calcutta v. Sub-Post Master, Dharamtolla Post Office, being Cri. Revn. No. 878 of 1948, D/- 7-4-1949 : , by our learned brothers Rama Prosad Mookerjee and K. C. Das Gupta JJ. The Magistrate following those two decisions held that he had no jurisdiction to order destruction by the Calcutta Corporation of these unwholesome barley which it appears he would himself have gladly otherwise ordered.
(3.) Mr. Banerjea appearing on behalf of the opposite parties has put forward the argument that this Court has no jurisdiction to sit in revision over a Magistrate's order under Section 421, Calcutta Municipal Act. It appears that this point was raised by the Advocate-General of Bengal in the case of Messrs. Sir Abdulla Harun & Co. v. Corporation of Calcutta in Cri. Revn. No. 679 of 1948 : and there was a difference of opinion between our learned brothers Rama Prosad Mookerjee and K. C. Das Gupta JJ. Rama Prosad Mookerjee J. was of the opinion that there was no force in the contention that a proceeding under Section 421, Calcutta Municipal Act, is not revisable under Sections 435 and 439, Criminal P. C. Our learned brother K. C. Das Gupta J. was of the contrary opinion. Unfortunately, as the case was decided on another point this was not placed before a third Judge; so we do not have any conclusive authority of this Court. We have therefore, paid our utmost attention to this point and we are unable to accept the argument of the learned Advocate-General adopted by Mr. Banerjea before us. We are clearly of opinion that a proceeding under Section 421, Calcutta Municipal Act is a proceeding before a criminal Court within the meaning of Section 435, Criminal P. C. It is obvious that under Section 435, Criminal P. C. an executive act cannot be revised by this Court. The section itself is clear and therefore, we do not cite any authorities. The section itself says that it must be the proceeding of "a criminal Court". So, the whole question is whether, when acting under Section 421, Calcutta Municipal Act and like sections, the municipal Magistrate is a criminal Court or not. The Local Government which appoints the municipal Magistrate under the Municipal Act is only authorised to do so under Section 531. Whatever other powers a Magistrate acting under the Criminal Procedure Code or under any other law may have, a Magistrate appointed a municipal Magistrate under Section 531 may be appointed only "for the trial of offences against this Act," that is to say, the Calcutta Municipal Act, "and the rules and bye-laws made thereunder". It is definitely stated that such Magistrates shall be called municipal Magistrates and then provision is made for their pay, pensions, leave, salary etc., and how this is to be realised from the Calcutta Corporation. It lays down that each of such Magistrates shall have jurisdiction over the whole of Calcutta. Therefore, a Municipal Magistrate can only be appointed for one purpose and one purpose alone, namely, trial of offences and where the Act imposes upon the Municipal Magistrates certain duties it must be in accordance with the purpose for which he is appointed and, therefore, all the sections in which the Municipal Magistrate is asked to do something are necessarily to be interpreted as sections dealing with cases of offences.;