JOHN Vs. SHERTHALAI MUNICIPALITY

JUDGEMENT

(1.) The petitioner herein was prosecuted before the Court of the First Class Magistrate, Sherthallay by the Municipal Council of that town for non-payment of the profession tax assessed on him for the first half year of 1954-55. The prosecution was launched under Rules 31 (2) and 38 of Schedule II of Act XXIII of 1116 (The Travancore District Municipalities Act, 1116). The learned Magistrate found that the petitioner had wilfully omitted to pay the amount due by him and accordingly convicted and sentenced him to pay a fine of Rs. 6/- and in default to undergo simple imprisonment for 3 days. The tax due from him, namely, Rs. 6-2-0 was also ordered to be recovered. The petitioner then moved the learned District Magistrate of Alleppey in Criminal Revision Petition No, 4 of 1958 to make a reference to this Court about the legality of the conviction entered against him. The learned District Magistrate declined to make the reference and the petitioner therefore filed this revision. A learned single Judge admitted the revision and issued notice to the opposite party, the Municipal Council, Sherthally.

(2.) Before the two lower courts and in this Court the main argument has been that in asmuch as the assessment was made without a proper compliance with Rule 19 (1) of Schedule II of the District Municipalities Act. The assessment was bad and that the prosecution was consequently unsustainable. This raised an, important question but before discussing it I must dispose of a preliminary point raised by the learned counsel for the petitioner.

(3.) The notice under Rule 19(1) calling upon the petitioner to furnish a return in the prescribed form showing the income on the basis of which he was liable to be assessed to profession tax was not served personally but by affixture as permitted by Section 352(1) (d) of the District Municipalities Act. The affixture was made on Door No. 305 but the petitioner contended that both his residence and his place of business was in the building numbered as 169 and that the service was therefore ineffective and invalid. According to the respondent Municipal Council the building numbered as 305 which was not far away from that numbered as 169 also belonged to the petitioner and he was running a business there. With a view to determine whether the council's contention was right, instead of calling for the relevant registers from the Council, against his protest, the learned Magistrate examined the petitioner (the accused in the case) as a court witness and elicited from him the information that building No. 305 also belonged to him. Before the District Magistrate and before this Court it was contended on behalf of the petitioner that such examination of the accused person was in direct contravention of Section 342-A, Criminal Procedure Code which while providing that an accused person shall be a competent witness for the defence and may give evidence on oath in disproof of the charges made against him or any person charged together with him at the same trial has also enjoined that an accused person shall not be called as a witness except on his own request in writing (see proviso (a) ). It is therefore clear that the learned Magistrate committed a grave error in examining the accused person without his request and against his protest, to prove a fact which the prosecution should have established by other evidence. That, however, is in my opinion, no ground to quash the entire proceedings. Section 167, Indian Evidence Act, 1872 provides inter alia that improper admission of evidence shall not be ground of itself for a new trial or reversal of any decision in any case, if it shall appear to the Court before which such objection is raised that independently of the evidence objected to and admitted, there was sufficient evidence to justify the decision. The question whether the prosecution was sustainable or the conviction was rightly made has therefore to be examined eschewing altogether the evidence furnished by the accused while under examination as a court witness. Beyond that it is not necessary to go in this case and the preliminary point is therefore repelled. However as observed by the District Magistrate it is unthinkable how a First Class Magistrate could have committed such wanton violation of an express provision of the Code of Criminal Procedure and no criticism would be too severe to condemn it. It is only by the Amendment Act XXVI of 1955 that Section 342A was introduced into the Code and until then an accused person was not a competent witness in a prosecution against him except in cases specially provided by Section 340 (2) of the Code.