Calcutta High Court
Brahma Panda And Anr. vs Chairman Of Howrah Municipality on 19 August, 1959
Equivalent citations: AIR1961CAL648, 1961CRILJ762, AIR 1961 CALCUTTA 648
JUDGMENT D.N. Das Gupta, J.
1. This is a revisional petition for quashing the proceedings in case No. 519-C of 1957 pending in the court of Sri S. N. Das Gupta, Magistrate of the first class, Howrah.
2. On a complaint made by the Municipality of Howrah on the 5th November, 1957, alleging that the present petitioners had violated the provisions under Section 448 of the Calcutta Municipal Act of 1923 as extended to the Municipality of Howrah read with Rule 22 schedule 17 summons was issued against the petitioners. On the 12th December, 1957, summons was returned after service. But the accused were absent. Then warrant of arrest was issued on the 27th December, 1957, with bail of Rs. 500/- but the petitioners could not be arrested. Subsequently warrant of arrest was taken to the house of the petitioners on the 28th/29th July, 1958, at night when one Dinonath Tewari stood surety for the petitioners who had earlier left for their native village. On the 5th August, 1958, the surety appeared by a lawyer in court when the learned Magistrate, made the following order:
"Accused absent. Petition filed by surety as king for time to produce the accused, who are said to have gone home. Normally, I should not have acceded to the request as the surety had no business to pop in when he knew that the accused persons would be going away to their native village shortly. Any way, I give a short adjournment till the 23rd August. If surety fails to produce the accused persons positively on the date fixed, he will stand to lose the entire amount of the bail bond."
3. The revisional petition was filed in this court on the 22nd August, 1958, and on that date a rule was issued calling upon the District Magistrate of Howrah and the complainant -- opposite party to show cause why the proceedings complained of should not be quashed or such other order or further order or orders made as 'to this court may deem fit and proper. The main contention of the learned advocate appearing for the petitioners is that the summons was issued by the court without copy of the complaint annexed, that therefore the summons was not summons at all and that therefore the petitioners were perfectly entitled to disobey the summons and refrain from attending the court. Paragraph 3 of the revisional petition states, "That with the said summonses your petitioners, who were related as uncle and nephew, saw their lawyer who advised them that as the said summonses did hot disclose any offence intended to be charged, they were invalid and inoperative in law and as such failed to create any legal obligation on the part of your petitioners to comply with the direction given therein."
Paragraph 4 of the revisional petition states, "That your petitioners as advised by their lawyer did not appear before the said learned Magistrate on 12-12-57 the date mentioned in the said summonses".
Then paragraph 9 of the revisional petition is as follows:
"That your petitioners humbly submit that from the facts and circumstances stated above, it is clear that the entire proceedings in the aforesaid case No. 519-C of 1957 of the aforesaid court from the very beginning not having been conducted according to the provision of the Cri. P. Code were not only illegal but without jurisdiction and against natural justice. The said proceedings, it is humbly submitted have clearly violated the fundamental principles of criminal jurisprudence. And, therefore, unless the proceedings in the aforesaid case are immediately quashed, it will result in a serious miscarriage of justice subjecting your petitioners to further unnecessary loss of money, harassment and humiliation without any lawful excuse whatsoever",
4. We have carefully considered the revisional petition and arguments of the learned advocate appearing for the petitioners. We are unable to agree with him that the summons ceased to be summons simply because it was not accompanied by copy of the complaint. The petitioners should have attended the court in obedience to the summons and then brought to the notice of the learned Magistrate that the summons was not accompanied by a copy of the petition of complaint as required by Section 204(1-B) of the Code of Criminal Procedure.
The petitioners were not justified in not attending the court of the learned Magistrate. It cannot be said that the jurisdiction of the learned Magistrate was affected simply because the summons was issued without a copy of the complaint. Further it would appear from the summons itself that the petitioners were required to answer to a charge under Section 488 of the Calcutta Municipal Act. It is true that quite a large number of offences are listed under Section 488 of the Calcutta Municipal Act, but then if the petitioners attended the court of the learned Magistrate and asked for a copy of the complaint, they would have known what the details of the offences were. At any rate although the summons was issued without copy of the complaint annexed, the petitioners should not have disregarded the summons and refused to attend the court of the learned Magistrate. When the petitioners attend the court of the learned Magistrate, the learned Magistrate will certainly direct copies of the complaint to be given to the petitioners.
5. In the result this revisional petition is rejected and the relevant Rule is discharged.
6. Let the records be sent down expeditiously and the case shall proceed in the court of the learned Magistrate in accordance with law, N.K. Sen, J.
7. I agree.