Satyabrata Mookherjee vs State of West Bengal

Kalidas Mukherjee, J.—These are the applications u/s 482 Code of Criminal Procedure arising out of TR No. 1341 of 2009, T.R. No. 1339 of 2009, T.R. No. 1337 of 2009, T.R. No. 1340 of 2009, T.R. No. 1338 of 2009, T.R. No. 1336 of 2009, T.R. No. 1342 of 2009, T.R. No. 1343 of 2009 pending before of the learned Judicial Magistrate, 2nd Court, Krishnanagar, Nadia praying for quashing of the proceedings. All the applications are taken up together as common questions of law are involved.

The prosecution case, in short, is that the political campaign was made by displaying the name of the Petitioner in the hoarding, in violation of the model code of conduct issued by ECI vide Memo dated 07.10.2008 thereby defacing the public property. It has been alleged that there was violation of Section 121(4) of the West Bengal Municipal (Second Amendment) Act, 2006. The proceeding was initiated by making G.D. entry and thereafter prosecution report was submitted before the learned Magistrate. The first order sheet of the learned Magistrate was opened in TR No. 1341 of 2009 on 3.4.2009 and it is quoted as follows:

Received PR No. . 58/09 dt. 3.3.2009 u/s 121(4) of W.B. Municipal Act, 2006 (Second Amdt) against accused.

Sri Satyabrate Mukherjee. Cognizance is taken. Issue summon. To 17.4.2009 for SR + App.

It is contended by Mr. Basu appearing for the Petitioner that the provision of Section 121(4) of the West Bengal Municipal (Second Amendment) Act, 2006 is the pari materia law as contained in Section 202(4) of the Kolkata Municipal Act. It is contended by Mr. Basu that the alleged offence is non-cognizable one and the prosecution report was submitted without obtaining the permission from the learned Magistrate u/s 155(2) Code of Criminal Procedure In this connection Mr. Basu has referred to the decisions reported in 2008 (1) C Cr. LR (Cal) 763, (Bijoy Yadav and Ors. v. State of West Bengal); 2010 (3) CHN (Cal) 145, (Sudip Bandyopadhyay v. State of West Bengal and Anr.); 1976 CHN 131, (Tapan Kumar Ghosal v. State of West Bengal and Anr.); 1997 SCC 298, (Keshav Lal Thakur v. State of Bihar); 1992 SCC 470 paragraph 102, (State of Haryana v. Bhajanlal).

It is contended by Mr. Basu that the facts relating to the essential ingredients of law regarding violation of the provision u/s 121(4) West Bengal Municipal (Second Amendment) Act have not been stated in the prosecution report for which the proceedings are liable to be quashed. It is contended that the Board of Councillors can initiate a proceeding under the West Bengal Municipal Act, but, the provision contained in Section 620 of the Kolkata Municipal Act in this regard is completely different. It is contended that u/s 406 of the Bengal Municipal Act there is complete prohibition for launching prosecution by a police officer.

Mr. S.S. Roy appearing for the State submits that in the instant case the provision contained in Section 155(2) Code of Criminal Procedure has not been complied with. It is contended by Mr. Roy that the decision in the case of Sudip Bandyopadhyay v. State of West Bengal (supra) is applicable in the instant case and the observation made by the Hon''ble Court in paragraph 9 of that case is applicable in the facts of the instant case. It is contended that u/s 406 of the West Bengal Municipal Act, the Board of Councillors may initiate the proceedings. Mr. Roy contends that the word ''may'' is the enabling provision, but, not mandatory in nature. It is contended that u/s 620 of the Kolkata Municipal Act police officer is empowered to initiate proceedings by virtue of authorisation.

Mr. Ghosal appearing for the State has adopted argument advanced by Mr. Roy.

Mr. Kasem Ali Ahmed appearing for the State has adopted the argument advanced by Mr. Roy, but, has added that where specific remedy has been provided for in the Code of Criminal Procedure, Section 482 Code of Criminal Procedure will not be applicable and the provision u/s 482 Code of Criminal Procedure should be applicable in rarest of rare cases. So far as the provision contained in Section 155(2) Code of Criminal Procedure is concerned Mr. Kasem Ali Ahmed has submitted that it has not been complied with.

Sub-section (4) of Section 121 West Bengal Municipal (Second Amendment) Act runs thus:

Notwithstanding anything contained in this section or elsewhere in this Act or in any other law for the time being in force, non-commercial advertisement or advertisement related to public interest may, with the consent, in writing, of the owner or the authority, be erected, exhibited, fixed or retained upon or over any land, building, wall, hoarding, frame, post, kiosk or structure, or displayed to public view in any manner whatsoever:

Provided that no permission of the Chairman shall be required for erecting, exhibiting, fixing or retaining upon or over any land, building wall, hoarding, frame, post, kiosk or structure, or displaying any advertisement, under this Sub-section:

Provided further that no non-commercial advertisement, other than the advertisement related to public interest, shall be erected, exhibited, fixed or retained on--

(i) the surface of any solid wall, or any other permanent structure, including the terrace, in such manner which shall cover, even partially, any door, window, ventilation shaft, chimney, air-conditioner, balcony or any other portion of the building covered with iron grill;

(ii) the building or fence or any educational institution or hospital;

(iii) the building used for religious purposes;

(iv) the gate or exit requirement of any building;

(v) the electrical installation, like transformer, lamp-post, switch gear box, meter-room;

(vi) the water supply installation, like pump house, pump, water main, boosting station or machinery, water tank or water reservoir;

(vii) the portion of any public transport;

(viii) the building or structures owned by the Central Government, State Government or any local authority, or on any heritage building;

(ix) the public street which may block the flow of pedestrians or traffic.

Explanation.-- In this Chapter,-

(a) the words ''non-commercial advertisement'' mean the advertisement which is related to the campaign of any political party, or an independent candidate, to an election, or any campaign of any mass organisation;

(b) the words ''advertisement related to public interest'' mean the advertisement which is related to promoting public health, preservation and conservation of environment, literacy campaign, fire protection, awareness of traffic rules, communal harmony, displayed by the Government, or any registered non-Government organisation, or any political party, or any mass organisation, but shall not include the displaying of advertisement, in any manner whatsoever, for the purposes of--

(i) selling or buying goods, real estates, services, concepts in lieu of financial or any other consideration; or

(ii) entertainment or recreational programme; or

(iii) setting up any marketing chain or network; or

(iv) admission in any tutorial, academy, training center, commercial school, commercial college, or in any other organisation which imparts, or shall impart, any education, including technical education, in lieu of financial or any other consideration; or

(v) recruitment of personnel through any private agency;

(c) the words ''mass organisation'' includes any registered trade union, organised workers'' organisation, teachers'' organisation, youth organisation, women organisation, peasants'' organisation, students'' organisation, pensioners'' organisation, traders'' organisation, unorganised workers'' organisation;

(d) the words ''political party'' shall mean a political party as defined in Clause (f) of Section 2 of the Representation of the People Act, 1951 (43 of 1951).

u/s 121(4) of the West Bengal Minicipal (2nd Amendment) Act, 2006 non-commercial advertisement or advertisement relating to public interest may be erected or exhibited with the consent in writing of the owner or the authority. The second proviso to Sub-section (4) provides that no non-commercial advertisement other than advertisement relating to public interest shall be erected or exhibited which shall cover, even partially, any door, window, ventilation shaft etc. In the instant case the police officer visited the place as mentioned in the prosecution report and found that political campaign was made by displaying the name of the Petitioner in the hoarding which was violative of the model code of conduct issued by ECI vide memo dated 07.10.2008. It has also been alleged that the public property has been defaced thereby and it was violative of the provision contained in Section 121(4) of the West Bengal Municipal (Second Amendment) Act, 2006. The G.D. entry was made and thereafter the prosecution report was submitted.

u/s 406 of the Bengal Municipal Act the Board of Councillors may initiate or withdraw any proceeding against any person who is charged with any offence under the provisions of Bengal Municipal Act or Rules. There is no provision in the Act empowering the police officer to initiate a criminal proceeding. The provision contained in Section 620 of the Kolkata Municial Act provides that no Court shall proceed with the trial of any offence punishable 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.

From paragraph 6 of the decision in the case of Sudip Bandyopadhyay v. State of West Bengal (supra) it appears that the proceeding was instituted on the basis of a complaint made by the Officer-in-Charge of the police station being authorised u/s 620 of the Kolkata Municipal Act. But, under the provisions contained in Section 406 of the West Bengal Municipal Act there is no such provision empowering the police officer to initiate a criminal proceeding. The prosecution report submitted in this case by a police officer, therefore, is not sustainable being violative of Section 406 of the Bengal Municipal Act.

The instant proceeding being non-cognizable one, the permission of the Magistrate to investigate into the matter is required u/s 155(2) Code of Criminal Procedure. This provision is mandatory. It has been observed in the case of Tapan Kumar Ghosal v. State of West Bengal and Anr. (supra) that the investigation made by the police in case of non-cognizable offence without obtaining the permission from the Magistrate was not maintainable and was, therefore, illegal. In the case of Bijay Yadav and Ors. v. State of West Bengal, it was held that because of the non-compliance of Section 155(2) Code of Criminal Procedure taking cognizance thereon was invalid and illegal. In the instant case from all the prosecution reports submitted by the police it appears that those were submitted without obtaining any prior permission from the Magistrate and the learned Magistrate took cognizance thereon. In view of the discussions aforesaid, I find that because of the non-compliance of Section 155(2) Code of Criminal Procedure the prosecution report submitted by the police is not maintainable in law and cognizance taken by the learned Magistrate thereon is invalid.

u/s 121(4) of the West Bengal Municipal (Second Amendment) Act the non-commercial advertisement or advertisement relating to public interest may be created or exhibited with the consent in writing of the owner or the authority. But, in these cases there was no mention in any of the prosecution reports that the hoarding was displayed mentioning the name of the Petitioner without the consent of the owner of the property. There is absence of the essential ingredients of Section 121(4) of the West Bengal Municipal Act, and the facts complained of do not constitute any offence as alleged.

Having regard to the submissions made by the learned Counsel for the parties and on consideration of the materials on record I find that the proceedings as mentioned in all the revisional applications relating to the G.D. entries in question are not maintainable in law and, therefore, stand quashed. The accused person is discharged from all such cases as mentioned in the revisional applications.

The revisional applications are allowed. This judgment will govern all the revisional applications being Nos. 1991 to 1998 of 2010.

Let a copy of this order be sent to the learned Court below immediately.

Urgent photostat certified copy, if applied for, be handed over to the parties as early as possible.