LAWS(ALL)-1965-9-41

STATE OF U.P. Vs. BANTA RAM

Decided On September 30, 1965
STATE OF U.P. Appellant
V/S
Banta Ram Respondents

JUDGEMENT

(1.) This is an appeal by the State against an acquittal from a charge under Sec. 5 Sub -section (2) of the U.P. Entertainment and Betting Tax Act (No VIII of 1937) hereinafter referred to as the Act. The Respondent was acquitted on the ground that the Entertainment Tax Inspector of Hathras, who had filed a complaint in the court of the SDM, Khair, a first class Magistrate of Aligarh, was not competent to make the complaint at all. It was held by the Magistrate that the Inspector was only authorised to inspect under the provisions of the Act and not to file complaints. Reliance was placed upon State v/s. Shyam Singh (1) (1956 AWR 286(2)) where it was held that a District Magistrate, having been duly empowered by the State Govt., under Sec. 10 of the Act, to exercise the power, under Sec. 8(1) of the Act, of authorizing officers to inspect cinema houses, could not be said to have exceeded these powers when he allocated the work of inspecting the cinemas to the Entertainment Tax Officer and authorized him to go and check the cinemas. It was held there that the exercise of statutory power, duly and specifically conferred by the State Govt. upon the District Magistrate, of authorizing officers to perform certain acts, was outside the purview of the principle: "delegates non potest dele gare". I am afraid that the case relied upon by the learned Magistrate has no bearing whatsoever upon the question whether an Inspector was competent to file a complaint alleging an offence punishable under the provisions of Sec. 5 of the Act. No provision of the Act deals with the competence of any particular officer to make such a complaint. Hence, this matter is governed by the provisions of the Code of Criminal procedure.

(2.) Reliance has been placed on behalf of the State on Gajraj Sinha and Ors. v/s. Emperor (2) (AIR 1985 All. 938) where it was held by Ganga Nath, J., relying upon a Division Bench authority of this Court in Farzand Ali v/s. Hanuman Prasad (3) (ILR 18 All 465), that a limitation upon the power of a person to present a complaint before a court of criminal justice has to be specific as it is under the provisions of Ss. 198 and 199 Code of Criminal Procedure. The Allahabad view was also followed in Basirulla a Asadulla and Anr. (4) ( : AIR 1929 Cal., 639). In the absence of specific provisions to regulate such a matter, the general procedural provisions of law govern it. This elementary principle was overlooked by the learned Magistrate.

(3.) The order of acquittal was passed under misconception of law. I. there -fore, set aside this order and send the case back to the court concerned for retrial in accordance with law.