Nani Gopal Biswas v. The Municipality of Howrah

774 SUPREME COURT REPORTS [1958] _1957_ out that the incidence of the offence of dacoity has _Sarjug Roi_ gone up to such an extent that in proved cases of seri_onti Others_ ous dacoity, like the one in hand, deterrent punish. _T'ie_ s101ev~f _Bihar_ ment is called for. The High Court was, therefore, _Sinha_ _J._ justified in imposing the sentence of 10 years' rigorous imprisonment. In view of the circumstances dis###### closed in the case, as indicated above, it cannot be asserted that the sentence as enhanced by the High Court is excessive. The appeal is, accordingly, dismissed. _Appeal dismissed._ NANI GOPAL BISWAS _1957_ _**October**_ **29.** _V._ **THE** MUNICIPALITY OF HOWRAH ###### (B. P. SINHA and VIVIAN BosE, JJ.) _Municipal_ _Law-Encroachment_ _caused_ _by_ _compound_ _wall-Structure_ _not part_ of _main_ _building-Notice_ to i·e_move_ _encroachment headed_ _by_ _wrong provision_ of _the_ _Municipal_ _Act-Conviction_ _under different_ _section-Leg'l-_ _lity-Calcutta Municip1tl Act,_ 1923 _(Bengal III of_ 1923), ss. 299, 300, 488(1) (c). The appellant was convicted by the Municipal Magistrate under s. 488, read with s. 299, of the Calcutta Municipal Act, 1923, and sentenced to pay a fine of Rs. 75, for failure to carry out within the specified time the terms of a notice served on him under s. 299 of the Act to remove the encroachment caused by a compound wall upon the roadside land of the Municipality. Since the offending structure was a compound wall and not something which was part and parcel of the main building, the offence comes under s. 300 and not s. 299, read with s. 488 of the Act. The High Court, in revision, found that the accused was fully aware of the nature of the accusation against him and that there was no prejudice caused to him by the wrong mention of s. 299 in the notice in place of s. 300. It accordingly altered the conviction into one under s. 488, read with s. 300, and reduced the amount of fine to Rs. 50 as required by the section. On appeal to the Supreme Court it was contended for the appellant that the conviction was bad because (1) the notice having been headed as under s. 299 of the Act, the conviction under s. 300 was illegal, (2) the requisition had not been lawfully made within the meaning of s. 488(1) (c), and (3) there was substantial prejudice to the appellant inasmuch as if the conviction were under s. W9 and not s. #### \ S.C.R. SUPREME COURT REPORTS 775 300, read with s. 488, he might have bt:en entitled to claim _19S7_ compensation : _N'1ni Gopal Biswas_ Held, that the effective part of the notice made it clear _The_ M;~icipaliry that the requisition, which was to remove the encroachment _of Howrah_ caused by the compound wall, was lawfully made, that the alteration of the conviction under s. 299 to one under s. 300 would not make it illegal and that, on the facts, there was no prejudice; _Begu_ v. _The King-Emperor,_ L.R. 52 I.A. 191, relied on. CRIMINAL APPELLATE JURISDICTION : Criminal Appea~ No. 60 of 1955. Appeal from the judgment and order dated the 2nd February, 1955, of the Calcutta High Court i11 Criminal Revision No. 1113 of 1954, against the judg~ ment and order dated the 14th November, 1953, of the Court of the Sessions Judge, Howrah in Criminal Appeal No. 185 of 1953, arising .out of the judgment and order dated· the 8th September, 1953, of the M\lllicipal Magistrate, Second Class, Howrah, in Case No. 1407C/1952. _Sukumar Ghose,_ for the appellant. _B._ _Sen_ and _P._ _K. Ghosh_ (for _P._ _K. Rose),_ for the respondent 1957. October 29. The following Judgment of the Court was delivered by ###### SINHA J.-This appeal on a certificate of fitness granted by the Calcutta High Court under Art. 134 (1 )( c) of the Constitution, is directed against the judgment and order of a Single Judge of that Court in its criminal revisional jurisdiction, convicting the appellant under s. 488/300 of the Calcutta Municipal Act, 1923 (which will hereinafter be referred to as the Act), and sentencing him to a fine of Rs. 50, in substitution of the order of conviction under s. 488/ 299 of the Act, of a fine of Rs. 75, passed by the lower courts. The facts found by the courts below which are ##### necessary to be stated for the purpose of this appeal, are as follows : The appellant who is the owner of the premises No. 10/3, Swarnamoyee Road, Howrah, encroached upon an area of 57'X3' of the road-side land of the Howrah Municipality to which the provi ###### SINHA J.-This appeal on a certificate of fitness granted by the Calcutta High Court under Art. 134 (1 )( c) of the Constitution, is directed against the judgment and order of a Single Judge of that Court in its criminal revisional jurisdiction, convicting the appellant under s. 488/300 of the Calcutta Municipal Act, 1923 (which will hereinafter be referred to as the Act), and sentencing him to a fine of Rs. 50, in substitution of the order of conviction under s. 488/ 299 of the Act, of a fine of Rs. 75, passed by the lower courts. _Sinha_ _J._ 776 SUPREME COURT REPORTS [1958] _!!:!__ sions of the Act have been extended. A notice, the _N>ni_ _Gopal Biswas_ terms of which we shall set out hereinafter, was serv_The_ _M;:;,icipality_ ed on the appellant to remove the encroachment afore_o/ Howrah_ said, and as he failed to carry out the terms of the _Sinha 1•_ notice within the specified time, the prosecution leading up to this appeal, was instituted before the magistrate who, under s. 531, is called 'Municipal Magistrate'. The Municipal Magistrate who tried the appellant in the first instance, convicted him, but on appeal, the learned Sessions Judge acquitted him on the ground that the prosecution had been launched beyond three months which was the prescribed period of limitation under s. 534 of the Act. The Municipality moved the High Court of Calcutta in its revisional ###### jurisdiction and a Division Bench of that Court (J. ###### P. Mitter and S. K. Sen JJ.), set aside the order of acquittal and directed the appeal to be re-heard, after giving the Municipality an opportunity of formally bringing on record certain official documents showing the date of the institution of the com plaint. The relevant documents were proved and exhibited on behalf of the prosecution in the Sessions Court and the learned Additional Sessions Judge confirmed the conviction and the sentence, and dismissed the appeal. Thereupon, the appellant moved the High Court in its revisional jurisdiction. His application in revision was~ heard and disposed of by P. N. Mukherjee J. by his order dated February 2, 1955, which is the subject-matter of this appeal. Before him, the appellant as petitioner, urged at the forefront of the arguments, the question of limitation, and the learned Judge took the view that the matter was now concluded in view of what had taken place in the High Court and in the Court of Session in pursuance of the order of remand passed by the High Court. The learned Judge agreed with the appellate court that the complaint was not barred. The High Court also agreed with the lower courts on their findings on the merits, that is to say, it affirmed the finding that the appellant had encroached upon the road-side land of the Municipality. The High Court accepted the argument raised on behalf of the appellant that on the facts found, namely, that the offending structure was a # S.C.R. SUPREME COURT REPORTS 777 #### compound wall and not something which was a part 1957 and parcel of the main building, the offence if any, _Na11i_ _Gopal Biswa:_ would come under s. ~00 and not s. 299, read wit~ s. _The_ M:~icipality 488 of the Act. The High Court further took the view _of Howrah_ that as the accused was fully aware of the nature of _Sillha_ _J._ the accusation against him, it would not cause any prejudice to him if the conviction and the sentence were altered into those under s. 300, read with s. 488 of the Act, the sentence being reduced to the statutory limit of 50 rupees. The appellant moved the High Court and obtained the necessary certificate from the Bench presided over by the learned Chief Justice who ###### observed, while granting the certificate : "It seems to me to be arguable and arguable with some force that such alteration of the conviction could not possi###### bly be correct in law ........ It would therefore be arguable that a notice under section 299 to remove a compound wall unattached to any building could not be a notice 'lawfully given' or a requisition 'lawfully made' within the meaning of section 488(l)(c) of the ##### Calcutta Municipal Act, 1923. It appears to me that the alteration ·of the conviction by this Court does raise a question of law which makes the case a fit case for further appeal to the Supreme Court." In this Court, the learned counsel for the appellant has placed at the forefront of his arguments the points suggested in the portion of the learned Chief Justice's order quoted above, but in our opinion, there is absolutely no substance in those contentions. The alteration of the conviction from s. 299 to s. 300, read with s. 488 of the Act, was no alteration in the substance of the accusation but only in the section more properly applicable to the facts found. A similar question was raised before their Lordships of the Judicial Committee of the Privy Council in the case ###### of Begu v. The King-Emperor(1). It was argued before their Lordships that the conviction of the appellants before the Judicial Committee under s. 201, Indian Penal Code, without a charge under that section, was a serious departure from the procedure laid down in the Code of Criminal Procedure. In that (') (1925) L.R. 52 I.A. 191. 778 SUPREME COURT REPORTS [1958] _1957_ case the initial conviction was for murder under s. ###### Nani Gopal Biswas 302 of the Indian Penal Code, but the High Court had The M:~icipa/ity set aside that conviction and substituted a conviction _of Howrah_ under the lesser s. 201. After discussing the provi _**Sinha**_ _**J.**_ sions of ss. 236 and 237 of the Code of Criminal Procedure, their Lordships made the following observations which fully cover the present controversy : .· ## _I_ ##### ' ## "- "A man may be convicted of an offence, although there has been no charge in respect of it, if the evidence is such as to establish a charge that might have been made." ###### It will be noticed that in the case before the Privy Council, the alteration was not only in respect of the section but also of the substance of the accusation, but as the lesser offence under s. 201, had been made out by the evidence led on behalf of the prosecution which was primarily for an offence of murder, their Lordships ruled that ss. 236 and 237 of the Code of Criminal Procedure authorize the Court to alter the conviction and the sentence to be passed in respect of the offence made out in the evidence. In the case in hand, it is manifest that the facts sought to be proved and found by the courts below remained the same even after the alteration of the conviction from s. 299 to s. 300, read with s. 488 of the Act. There was, therefore, no illegality in the alteration of the conviction under one section to the other. ###### It was next argued that the notice served upon the appellant was not lawful within the meaning of s. 488 ( 1) ( c) of the Act, which runs as follows : "488(1)Whoever commits any offence by ##### (a) ....................................... . #### (b) ....................................... . (c) failing to comply with any direction lawfully given to him or any requisition lawfully made upon him under any of the said sections, sub-sections, clauses, provisos or rules, shall be punished . . . . ........................ " The substantive portion of the notice is in these ###### terms: "Take notice that you are hereby required by the Municipal Commissioners of Howrah, within thirty ###### ' ### ' s.c.R. SUPREME COURT REPORTS 779 ###### days from the date of service of this notice to remove ~ the encroachment caused by a compound wall mea- _Nani Gopal BisrM_ s.urjng 57'·0"X3'-0" upon Swarnamoyee Road attached _The_ M:~iclpality to premises No. 10/3 and that in default, the provi- _of Howrah_ sions of the above 1\ct will be enforced." _Sinha_ _J._ ###### This notice is headed as under s. 299 of the Act. It is no more in controversy, as found by the courts - below, that the offending p~t of the structure,,eomes under s. 300 which refers to a wall, etc., not being a portion of a building or fixture, as contemplated in s. 299. The contention now has narrowed down to this that the notice having been headed as under s. 299 of the Act, the conviction under s . .300 is illegal, ###### because, it is further argued, the requisition had not been 'lawfully made'. According to thi!! .argument, ##### the requisition would have been <lawfully made', if the notice had been headed as under s. 300. Hence, the label given to the notice makes au the differenc-e between a requisition 'lawfully made' and a requisition not so made. 1n our opinion, this argument has ###### only to be stated to be rejected. It is the substance and not the form of the notice that has to be regarded. The effective part of the notice quoted above, leaves no doubt in the mi.rid of the parties concerned that the ###### . requisition is to remove the encroachment caused by the compound wall. As it has not been contended that the appellapt had not received the notice, and it is common ground that the appellant had not carried out the terms of the notice, there cannot be the .least doubt that the appellant has incurred the penalty ###### und~r s. 488(1) (c), read with s. 300. It must, there-· fore,· be held that notwithstanding the label given tothe notice, the requisition had been lawfully made in the sense that the appellant had made the encroachment complained of, and that the Municipality was entitled to call l,l.pon him to remove the encroachment. The appellant was bound to carry out the terms. of the requisition, and as he admittedly failed therein, he had incurred the penalty of the law. ##### It was next sought to be contended that there was substantial prejudice to the appellant inasmuch as if 780 SUPREME COURT REPORTS f1958l _1957_ the conviction were under s. 299 and not s. 300, read _Nani Gopal Biswas_ with s. 488, he may have been entitled to claim com _Thc_ M:~icipaliry pensation. There are several answers to this conten_of Howrah_ tion. In the first instance, he himself invited the _Sinha_ _J._ High Court to interfere with the order of conviction ###### passed by the lower courts. If the High Court has :set right the technical defect, as it was bound to do when ~the matter had been brought to its notice, the appellant has no just grievance, keeping in view the fact that the amount of fine has been reduced as a result of the alteration in the section. Secondly, if he has any rights to claim compensation in a civil court the judgment and order of the criminal court is wholly irrelevant; and thirdly, the prejudice must have reference to any irregularity in the trial of the ###### case. It has not been shown that the appellant had, in any way, been prejudiced in the trial of the case as a result of the alteration in the section, that is to say, ###### that he was deprived of some opportunity to make a proper defence to the prosecution if the right section ###### had been named in the notice or in the charge, if any. Nor. has he been able to show that he was misled as a result of any such technical error. Lastly, it was sought to be made out that the prosecution itself was beyond time. This contention was attempted to be made good with reference to the additional evidence adduced at the appellate stage as a result of the direction of the High Court when the case came before it on the first occasion, as mentioned above. In our opinion, there is no substance in this contention because as pointed out by the learned Additional Sessions Judge, the additional evidence placed before the Court puts the matter beyond all reasonable doubt that the complaint had been lodged in time before the relevant authority. In view of these considerations, it must be held ###### that there is no merit in this appeal. It is, according ly, dismissed. _Appeal_ dismissed.