BHADRESWAR MAJHI Vs. CORPORATION OF CALCUTTA

JUDGEMENT

(1.) THE question that arises for decision in this case is whether after an application under section 363 of the Calcutta Municipal Act has been, withdrawn by the Corporation a fresh application lies under the same section with respect to the same structures.

(2.) THE present Rule was issued on the Municipal Magistrate and the Corporation of Calcutta to show cause why the proceedings now pending before the Municipal Magistrate on the application under Section 363 of the Calcutta Municipal Act that was filed in January 1951 with respect to some alleged unauthorised structures should not be quashed. It appears that for a portion of the structures that are now alleged to be unauthorised and sought to be demolished, an application under Section 363 of the Calcutta Municipal Act was made by the Corporation on the 1st June 1949. After the proceedings instituted on this application had continued for some days, the Corporation asked for leave to withdraw that application and, on the 1st of March 1950, the learned Magistrate passed the following order: Corporation prays for leave to withdraw this application on the ground that there is a formal defect in the precis, which should be cured and fresh case filed on the basis of a corrected precis. Application allowed to be withdrawn and the proceedings are dropped.

(3.) WHETHER or not Section 403, Criminal P.C. bars the present application under Section 363 of the Calcutta Municipal Act depends mainly on the question whether the hearing of an application under Section 363 of the Calcutta Municipal Act is in substance a trial for an offence. If the hearing of such an applications is a trial for an offence, the person who was proceeded against, may be held to have been acquitted when the application was withdrawn and the present application will, in that case, not lie under the provisions of Section 403, Criminal P.C. If, however, an application under Section 363 of the Calcutta Municipal Act is in substance not a trial for an offence, Section 403, Criminal P.C. could obviously be no bar to the present application.