CHAIRMAN BARRACKPORE MUNICIPALITY Vs. LABANYA PROVA DEBI

JUDGEMENT

(1.) This is a reference made by an Additional Sessions Judge of 24-Parganas recommending that certain proceedings under Section 453/500, Bengal Municipal Act be not treated as proceedings in prosecution of the person proceeded against.

(2.) A complaint was filed before the Sub-divisional Officer, Barrackpore, by the Commissioners of the Barrackpore Municipality that a certain nuisance had been caused by the accused person Labanya Prova Debi. Information of the nuisance having been received by the Commissioners and the Commissioners being obviously satisfied that the nuisance existed, served a notice on the lady requiring her to remove it within a specified time. There having occurred failure to comply with the requirements of the notice, the Commissioners of the Municipality caused a complaint relating to such nuisance to be made before the learned Sub-divisional Officer; the latter on receipt of it directed the issue of summons on the lady to appear before him and when she appeared she was examined under Section 242, Cr. P. C. and the case was fixed for hearing evidence. On 25-2-1955 it was represented on behalf of the lady that the procedure adopted by the learned Magistrate was mis-conceived and that the proceedings under Section 453 could not properly be described as proceedings in prosecution, with the necessary consequence that the lady could not be treated as an accused person and there could be no question of examining her under Section 242, Cr. P. C. The learned Magistrate made an order dealing with this objection with which the person proceeded against was evidently dissatisfied and she took the matter before the learned Additional Sessions Judge who has made this reference with the observation that the petitioner before him should not have been examined under Section 242 and that she could not have been treated as an accused, nor could "cognizance" be taken of the "complaint" made against her by the Municipality.

(3.) It seems to me that the trial Magistrate made the position quite clear in the order which he made on 22-4-1955 in course of which he pointed out that he had merely been holding an enquiry as to whether there was still the nuisance in existence as alleged by the Municipality and whether action was called for under Section 453, Bengal Municipal Act. In view of this observation I think the learned referring Judge might have spared himself the pains of a reference under Section 438, Criminal P. C.