Dahyalal and Company and Another vs The Calcutta Municipal Corporation and Others

Surya Kumar Tiwari, J.—This revisional petition has been filed by the accused against the order taking cognizance of the offence punishable u/s 435 of the Calcutta Municipal Corporation Act, 1980, by Municipal Magistrate, Calcutta, in Case No. 4320-B of 1988.

The contentions of the learned counsel for petitioner is that (1) the complaint has not been lodged by the Municipal Commissioner; (2) The complainant was not examined u/s 200 Cr. P.C. and (3) The accused was not required to take licence from the Corporation for carrying out his whole sale drug shop.

As regards point No. 1, the learned counsel relies on Supreme Court Judgment reported in (1) Ballabhdas Agarwala Vs. J.C. Chakravarty, (2) Corporation of Calcutta v. Bibhuti Basu 73 CWN 786 and (3) C. Lakhotia v. S.K. Mondal, 87 CWN 859.

As regards Ballabh Das case Supreme Court after examining evidence on record found that there was no order of delegation of power infavour of Health Officer, hence the complainant was not maintainable. As regards the second case, it lays down that there was no provision for delegation of power by the Commissioner. This view was not correct in the light of amendment incorporated in Section 34 of the Old Corporation Act of 1950 by an amendment of 1953, as noticed later case cited above.

The third case lays down that the case does not disclose whether the Health Officer has been delegated any powers.

The Supreme Court case was under Calcutta Municipal Act of 1923 wherein the two later cases were under the Calcutta Municipal Corporations Act, 1951. Hence they are clearly distinguishable.

Section 620 of the Corporations Act of 1980 reads :

"Save as otherwise provided in this Act, no court shall proceed to the trial of any offence punishable by or under this Act except on the complaint of, or upon information received from the Municipal Commissioner or any person authorised by him, by general or special order in this behalf."

It is manifestly clear from the above section that this section only prevents the Magistrate from proceeding with the trial without a complaint from the commissioner or from any person authorised by him but it does not say that no court shall take cognizance of any offence, under the act, without such a complaint.

It, therefore, follows that the Health Officer can be required by the Magistrate to produce the general or special authorisation from the Commissioner before proceeding with the trial. He can do it even now, even if such an authorisation has not already been filed in the case.

As regards point No. 2 the complaint clearly says that the same has been filed on behalf of Calcutta Municipal Corporation through its Health Officer. Every Officer of the Corporation is a public servant within the meaning of Section 21 (eighteen) of the Indian Penal Code. Hence Judicial notice has to be taken that the complaint has been filed by a public servant in discharge of his public duties as such public servant. Thus I hold that examination of the complainant u/s 200 Cr. P.C., was not essential in view of proviso to Section 200 Cr. P.C.

As regards the third contention, it will be sufficient to observe that the allegations: in complaint only related to running a shop in a residential premises without obtaining prior permission from the Corporation u/s 435 of the Act.

Hence this revision petition is dismissed with a direction to the Magistrate to insist upon production of the delegation of authority before proceeding with the trial of the case.