SHERMULL Vs. CORPORATION OF CALCUTTA

JUDGEMENT

(1.) On the 23 March 1020 Dr. S.N. Ghose, Food Inspector of the Corporation of Calcutta, filed a complaint in the Court of the Municipal Magistrate asking for summons against the petitioners under Section 574-495A(1) of Act III (B.C.) of 1899 as amended by the Calcutta Municipal Amendment Act of 1917. The offence complained of was that the petitioners had been selling adulterated ghee on the 17tn February 1920. The Magistrate ordered summons to issue for the 17 April 1920. On that date the petitioners appeared by Pleader and the Magistrate passed an order directing that proceedings be stayed for six weeks as the Food Inspector was on leave. On the record no further order appears until 29 November 1912. On that date the Food Inspector prayed for the revival of the case and the Magistrate directed the record to be put up. On the 16 December 1932 the Magistrate passed the following order "Case revved. Issue fresh summons for 13 January 1923." The petitioners hive obtained this Rule calling on the Municipal Magistrate and on the Chairman of the Corporation to show cause why this order reviving the proceedings should not be set aside on the following ground: "For that having regard to the great delay which had occurred from the date when the proceedings were stayed until the applicant on for revival (namely 17 April 1920 to 29 November 1922) it mast be assumed that these proceedings were abandoned and that the application for revival of the 29 November 1922 was at least a fresh complaint and being more then three months after the date of the alleged offence the proceedings could not go on in view of Section 631 of the Calcutta Municipal Act."

(2.) In support of the Rule reliance is placed on the decision of a Bench of this Court in the case of Nando Lal Guha V/s. Corporation of Calcutta 56 Ind. Cas. 862 : 24 C.W.N. 467 : 31 C.L.J. 442 : 21 Cr.L.J. 558. We hold 1hat the facts of that case are clearly distinguish able from the facts of the present case. The point of resemblance he two cases is that an order was passed reviving the case after the proceedings had been in abeyance for a very long time. But the point on which the decision of this Rule depends is whether the original proceedings were abandoned so that the application of the 29 November 1922 must be regarded as a fresh complaint: if this were fresh complaint the issue of summons thereon was c early illegal having regard to the provisions of Section 631 of the Calcutta Municipal Act which prevents a Magistrate from taking cognizance of an offence under the Act unless the complaint is made within three months of its commission. But having regard to the Magistrate's explanation we cannot hold that original proceedings were abandoned. The Municipal Magistrate is a Presidency Magistrate and under Section 441 Criminal Procedure Ode, we are bound to consider his explanation before setting aside his order. It appears that since the amendment of the Calcutta Municipal Act by the Act of 1917 the Corporation have instituted a large number of prosecution's for adulteration of ghee. These cases are usually strongly contested and as the evidence in the majority of cases is more or less similar it is inconvenient for the Corporation and the accused as also for the Court for these cases to go on at one and the same time. Consequently some of the cases including the present case have been stayed consistently with a procedure prevailing in the Court for the last 20 years. It further appears that several other similar cases were instituted against two of the three pet timers and that they were fully aware of all the circumstances having regard to these J acts we see no reason to hold that the proceedings were abandoned. Further we are satisfied that the petitioners were not prejudiced by the delay and were not led by it to believe that the prosecution has been dropped.

(3.) But the most important difference between this case and the case of Nando Lal Guka v. Corporation of Calcutta 56 Ind. Cas. 862 : 24 C.W.N. 467 : 31 C.L.J. 442 : 21 Cr.L.J. 558 cited above is in the form of the applications on which the orders reviving the case were passed. In the reported case the application, which is set out in lull in the report, contained statements of facts which were subsequent to a stay of proceedings. Here the application is on a printed form and is in the following terms. "The prosecution prays that case No. 3011 B of 1920 on which proceedings were stayed in this Court in 17 April 1920 may be revived." This was certainly not a complaint on which the Magistrate could have taken fresh cognizance of the offence. His order directing issue of summons was an order passed in a pending case of which he had taken cognizance within three months of, the alleged commission of the offence and the provisions of Section 631 of Calcutta Municipal Act were not contravened.