Guru Prasanna Mukherjee vs Asansol Municipality

Amaeesh Roy, J.—This Rule was issued at the instance of an accused who has been prosecuted u/s 500 of the Bengal Municipal Act, 1932, read with Section 182 of that Act for having carried on the profession of a legal practitioner as a Muktear within Asansol Municipality without taking out a licence for the 2nd half of the year 1959-60.

The relevant facts are that the Commissioners of the Asansol Municipality have been superseded by an order of the State Government of West Bengal and an Administrator of that Municipality has been appointed.

The said Municipality had imposed a licence fee for the profession of legal practitioner u/s 123(f) of the Act and had determined the amount of such fee at Rs. 5 per year. After the Municipality was superseded, the Administrator enhanced the licence fee to Rs. 10. The Petitioner who is a senior Muktear at Asansol did not pay the licence fee of Rs. 5 for the 2nd half of 1959 in spite of notice of demand and did not take out a licence for that period.

A petition of complaint was filed in the court of S.D.O., Asansol, by a person describing himself as Administrator. "Asansol Municipality" and upon that complaint the learned Magistrate took cognizance and summoned the accused by an order, dated April 12, 1960. The order was in these terms:

Seen complaint report u/s 500 of the B.M. Act 1932. I take cognizance u/s 190(1)(b), Code of Criminal Procedure Summons accused for 4-6-60.

Cognizance purported to be taken u/s 190(1)(b) is an obvious mistake.

The accused appeared before the learned Magistrate on June 25, 1960 and was released on P.R. Bond. The case was transferred u/s 192, Code of Criminal Procedure, and on May 20, 1960 an order was passed fixing September 10, 1960 for hearing of the case.

On August 29, 1960 the accused person moved this Court and the Rule to show cause why the proceedings should not be quashed was issued. The opposite party Asansol Municipality has entered appearance and opposed the Rule for quashing.

Appearing in support of the Rule the learned Advocate Dr. Hemendra Nath Das Gupta sought to raise points regarding the constitutional validity of the provisions in Section 123 and also Section 182 of the Bengal Municipal Act and he attacked the legality of prosecution u/s 500 of that Act on the ground that launching of prosecution is a means of realisation of the tax and on the authority of the Full Bench decision of this Court in the case of S.M. Nawab Ariff v. The Corporation of Calcutta (1959) 64 C.W.N. 1 he contended that other remedy of realising the tax by suit in Civil Court remaining open, the provision of the onerous means by launching prosecution as contained in Section 182 and Section 500 of the Act are ultra vires-Article 14 of the Constitution of India, read with Article 13 thereof. This argument of Dr. Das Gupta though presented with vehmence, is based on a fallacious assumption that provisions in Section 182 and Section 500 of Bengal Municipal Act are means of realisation of the tax imposed as licence fee. Section 182 of the Act is in these terms:

When it has been determined that a tax shall be imposed on professions, trades and callings, every person who exercises in the municipality either by himself or by an agent or representative, any of the professions, trades or callings specified in Schedule IV, shall take out a half-yearly licence and pay the tax imposed under Clause (f) of Sub-section (1) of Section 123.

Relevant entry, in Section 500 of the Act for which punishment is provided, is "Failure to take out a licence". These provisions clearly show that a duty to take out a licence is imposed by Section 182 and failure to do so is made punishable as an offence u/s 500. That it is not a means to realise the tax imposed u/s 133 and Schedule IV of the Act appears clear from the entry in 3rd column of the table in Section 500 where fine which may be imposed has been fixed a Twice the amount payable for "licence, exclusive of the amount so payable".

This language makes it beyond doubt that amount of tax payable as license fee cannot be included in the fine imposed, and therefore prosecution is not a means of realisation of that tax. So the Full Bench decision cited by Dr. Das Gupta has no application and his argument based thereon has no force at all.

It may be mentioned that Section 123 of the Bengal Municipal Act has been held to be a valid law and not ultra vires even as delegated legislation in the decision of this Court in the case of Sitel Chandra v. State AIR (1956) Cal. 85.

But Dr. Das Gupta''s attack on legality of the proceeding in the present case appears to be supported by two sections of the Bengal Municipal Act.

First, Section 533 of that Act provides

No prosecution for an offence under this Act or any rule or by-law made in pursuance thereof shall be instituted without the order or consent of the Commissioners and no such prosecution shall be instituted except within six months next after the commission of such offence unless the offence is Continuous in its nature, in which case a prosecution may be instituted within six months of the date on which the commission or existence of the offence was first brought to the notice of the Chairman:

Provided that the failure to take out any licence under this Act shall be deemed to be continuing offence until the expiration of the period for which such licence is required to be taken out.

In the present prosecution the petition of complaint does not state the date on which the offence was committed. Second half of the year 1959-60 commenced with October 1, 1959. If the offence consisted in carrying on the profession of legal practitioner as a Muktear on that date then prosecution that commenced on April 12,1960 is beyond the period of 6 months. Even if by application of the explanation to the section the offence is taken to be continuous in nature, then also the complaint does not state on which date the commission or existence of the alleged offence was first brought to the notice of the Chairman or in this case, the Administrator of the Municipality. On such a complaint no cognizance could be taken as by dint of Section 533 of the institution of prosecution beyond six months from the relevant date is barred.

On behalf of the Municipality the learned Advocate, Mr. Chandra Narain Laik said this difficulty was brought about by the defect in the petition of complaint but he sought to argue that whether or not the institution of prosecution in this case has been within the period mentioned in Section 533 is a matter of evidence at the trial and omission to state material facts in the complaint is not a bar to taking cognizance or issue of process. I cannot accept this contention. The decision in the case of The Chairman of the Howrah Municipality v. Barada Prassanna Pain (1919) 31 C.L.J. 127. relied on by Mr. Laik was given in respect of old Calcutta Municipal Act (Bengal Act 3 of 1899). Language of Section 578 of which was quite different from Section 533 of Bengal Municipal Act, 1932 and that decision is not an authority for Mr. Laik''s proposition.

When a statute creates a bar to institution of prosecution, as has been by Section 533 of the Bengal Municipal Act, 1932, it is a limit to the jurisdiction of the Court to take cognizance of the offence or issue process by which the prosecution is instituted unless it is made to appear on the complaint itself or initial deposition u/s 200, Code of Criminal Procedure, that it is within the period prescribed by law. In the present case the complaint itself does not furnish the material information and the complainant was not examined u/s 200, Code of Criminal Procedure, obviously because it was made by the Administrator of the Asansol Municipality who is a public servant. The learned Magistrate has allowed the prosecution to be instituted by taking cognizance and issuing process without compliance with Section 533 of the Bengal Municipal Act and therefore the order, dated April 12, 1960, has been illegal and without jurisdiction.

Another effect of Section 533 of the Act by operation of Section 554 thereof is that no prosecution can be instituted for an offence under that Act without the order or consent "by such person or persons as the State Government may direct" as mentioned in Section 554(1)(b) of the Act. Existence of such an order or consent by proper person is a necessity before prosecution can be instituted.

In the present case it is common ground of the parties that Asansol Municipality has been superseded u/s 553 of the Act and the complaint was made by Administrator appointed upon such supersession. But the Administrator need not necessarily be the person within Section 554(1)(b). Use of the language "person or persons as the State Government may direct" clearly how that more than one person may be so authorised, of who the Administrator may or may not be one. In the present case nothing has been said in the complaint to show that the Administrator is such a person, and it is therefore hit by the bar of Section 533 of Bengal Municipal Act, 1932.

There is yet another defect in the proceeding. Sub-section (1A) of Section 204, Code of Criminal Procedure.

No summons or warrant shall be issued against the accused under Sub-section (1) until a list of the prosecution witnesses has been filed.

In the present case no name of witnesses has been mentioned in the complaint and in the whole of the records there is nothing to show that list of witnesses was supplied on or before April 12, 1960; yet the learned Magistrate directed issue of process against the accused by an order of that date. This has been in violation of the mandatory provision of Section 204(1A) Code of Criminal Procedure, that has been introduced by amending Act XXVI of 1955. Therefore the order must be held to be illegal and without jurisdiction.

For these reasons the order, dated April 12, 1960, by which cognizance was purported to have been taken of the alleged offence and process issued against the accused must be set aside and the proceeding is quashed. Rule is made absolute.