Chairman, Bihar Municipality v. Mt. Ramnandi Kuer And Others Opposite Party.

1. This is an application in revision against an order of a Magistrate of the second class at Bihar. The judgment of the Magistrate begins:

The accused have been prosecuted under Section 198 of the Municipal Act, as they did not comply with the notice served upon them to remove the encroachment, a platform) within eight days of the service of the notice.

2. It concludes, after the finding that the encroachment was “very doubtful,” with the words:

Accordingly no action under Section 198 of the Municipal Act, can possibly be taken when the encroachment has not been proved. I therefore do not find any of the accused guilty and acquit all of them under Section 245(1) of the Cr PC.

3. The application in revision was filed direct and admitted. It has been contended on behalf of the opposite party that it should not be entertained because no application was made to any lower Court of revision. In support of this contention 3 Pat LJ 3021 has been cited.

4. In 21 PLT 627,2 I held that though it is not usual to entertain applications in revision direct, they must, after they have been admitted, be disposed of on the merits. It was not necessary for me on that occasion to give any authorities for that view because the point was not very seriously raised before me. But now that it has been raised, it is sufficient to refer to 50 Cal 4233 and 56 ALL 1584 cited by Mr. Sarjoo Prasad on behalf of the applicant, the chairman of the Bihar Municipality. The ruling in 3 Pat LJ 302 is based on Calcutta and Allahabad decisions and the cases now referred to show that in those Courts also a distinction is made in the treatment of such applications before and after admission. If the matter dealt with by the Magistrate was, as he says, one under s. 198, Bihar and Orissa Municipal Act, it seems that the definition in S. 3(12) of the Act was completely oyer-looted by everybody concerned until the argument was well advanced in this Court. Section 198 provides that “the Magistrate” may on the application of the Commissioners order that the obstruction, encroachment or projection be removed, etc. Now this expression “the Magistrate” is defined in S. 3(12) of the Act as including the District Magistrate, the Magistrate in charge of the sub-division in which the municipality is situated, and any Magistrate subordinate to the District Magistrate to whom the District Magistrate has made over any of his duties under this Act.

5. It has been now ascertained that the Magistrate with second class powers does not come within this description. He had therefore no authority to deal with the matter under s. 198 at all, to say nothing to the fact that if he did deal with it under that section, he could not possibly have applied Section 245 of the Cr PC, to it. Section 198 is clear enough, and the Magistrate should have had no difficulty on reading it to find out that there can be no question of any acquittal or any conviction under that section. It has, however, been contended on behalf of the opposite party that the order of a Magistrate acting under Section 198 of the Bihar Municipal Act, is not subject to revision under Section 439 of the Cr PC. Section 201 of the Municipal Act, provides that every order made by the Magistrate under s. 198, shall be deemed to be an order made by him in the discharge of his judicial duty, but the contention on behalf of the opposite party is that there is nothing to show that the Magistrate acting under s. 198 is to be regarded as an inferior criminal Court (to take the expression used in s. 435). There are several answers to this. It is true that in the Municipal Acts in Bombay, the United Provinces and Burma functions are assigned to the District Magistrate as a persona designata. But the expression persona designata was recently examined by Fazl Ali J. (delivering the judgment of the Full Bench) in 21 PLT 10675 and the discussion shows how even if the Magistrate under s. 198 belonged to the class persona designata, that need not necessarily prevent him from being an inferior Court. The function he discharges under the section is discharged in the course of his judicial duty; it is not a function that can be assigned to anybody except a Magistrate. The Criminal Procedure Code, for the sake of brevity (as Lord Macnaghten said in 39 Cal 9586) uses the terms ‘Court’ and ‘Magistrate’ generally, if not always, as convertible terms.

6. In 59 IC 137,7 decided in 1920 in the Calcutta High Court, when these parts were governed by the Bengal Municipal Act, 1884, it was expressly held by the learned Judges that an order made by a Magistrate under S. 202 of that Act (corresponding to S. 198 of our Act of 1922) is a judicial proceeding and that the High Court has power to revise such order; and this was followed in 52 Cal 670,8 where the learned Judges observed that apart from the authority they had cited, they would hold that the Legislature could never have intended to enable a Magistrate to deprive a person of his right to a civil action for acts done by the municipal commissioners in exercise of their powers except by a judicial order passed after hearing the parties concerned. The learned advocate for the opposite party has relied on the distinction made in 21 PLT 29,9 between a Court and a Court subordinate not to this Court but to the Board of Revenue. But this is of no importance in the present case because the Magistrate who is moved under S. 198 is a Magistrate who is as such subordinate to the District Magistrate and the District Magistrate is subordinate to this Court, while in 21 PLT 29 the Collector, if a Court at all, was shown to be a Court subordinate not to the High Court but to the Board of Revenue, so that even if his order was taken to be made judicially, the High Court had no revisional jurisdiction. Even apart from authority, we have in the present case a Magistrate who expressly deals with a prosecution under ss. 197 and 198, Municipal Act, and records an acquittal under Section 245 of the Cr PC. He has clearly functioned as a criminal Court, and there cannot be any question that he is an inferior criminal Court. The order of the Magistrate, therefore, acquitting the opposite party under Section 198 of the Municipal Act, must be set aside on the double ground that he was not empowered to act under the section, and that the order is misconceived, founded as it is on the assumption that in a proceeding under S. 198 there can be either a conviction or an acquittal.

7. The Magistrate does not seem to have been the only authority that missed the purport of S. 198. The municipal chairman sanctioned the “prosecution” under this section. The Sub-divisional Magistrate summoned the accused under this section also and transferred the case for disposal to the Magistrate with second class powers. The mistake made at earlier stages, however, is small justification for the failure of the trying Magistrate to see what s. 198 does or does not authorize.

G.N/R.K

8. Order set aside.