State of Rajasthan v. Bhanwarlai — 1957 DIGILAW 52 (RAJ)

Wanchoo, C.J.—These are two connected matters and we shall dispose them of by one judgment. The appeal is by the Mate against the acquittal of Nemichand by the District Magistrate, Churu. The revision is by Jaichandlal Vice President of the Municipal Board, Bidasar against Bhanwarlal and Nemichand. 2. The facts of the case may be briefly narrated. It appears that Bhanwarlal and Nemichand had applied to the Municipal Board, Bidasar on the 5th of November 1952 giving notice of constructing a house. As the application was not accompanied with the plan of the house and the Patta of the land on which the house was to be built, the Municipal Board gave notice to Bhanwarlal and Nemichand to submit the plan of the house and the Patta of the land and thereafter grant of permission would be considered. Bhanwarlal and Nemichand were also told that they should stop making constructions without notice to the Board as they were said to have already begun the construction. 3. Bhanwarlal and Nemichand replied to this notice by taking up the attitude that they were not bound under the law to give notice to the Municipal Board before constructing the house and asked the Board to state how the Board insisted on asking them to obtain permission. Thereafter the Board gave notice to them that if they did not stop constructions, they would be prosecuted under sec. 108 (6) of the Rajasthan Town Municipalities Act, 1951, hereinafter called the Act. As these persons did not stop the constructions, they were prosecuted by the Board. Bhanwarlal was acquitted, but Nemichand was convicted by the Magistrate and sentenced to a fine of Rs. 50/-. Nemi-chand appealed to the District Magistrate and the District Magistrate allowed the appeal and acquitted Nemichand also. 4 The appeal of the State is against this order of acquittal of Nemichand, Jaichandlal also had come up in revision against this order of acquittal, but for some reason he also added the name of Bhanwarlal, though Bhanwarlal had been acquitted by the Magistrate long ago and that order of acquittal does not seem to have been challenged till the District Magistrate acquitted Nemichand also. Learned counsel appearing for Jaichandlal has stated that his client did not intend to file the revision against Bhanwarlal and that he does not press it against Bhanwarlal. Learned counsel appearing for Jaichandlal has stated that his client did not intend to file the revision against Bhanwarlal and that he does not press it against Bhanwarlal. So, there only remains the revision application against the acquittal of Nemichand and that is covered by the appeal of the State The revision must therefore be dismissed on the ground that it has now become infructuous in view of the appeal by the State. 5. We now turn to the appeal against the acquittal of Nemichand. The charge against him was that he constructed a house in Bidasar without giving notice to the Municipal Board as required by sec. 108(1) of the Act. That no sanction of the Municipal Board was obtained is not in dispute. What Nemichand contended was that no such permission was necessary and the reason for this contention was that the law did not require the residents of a municipality to give notice under sec. 108(1) till the provisions of sec. 101 of the Act were complied with. The trial Magistrate did not go into this question at all, the appellate court accepted the view that as the provisions of sec. 101 had not been complied with, no notice was required under sec. 108 (1) of the Act. It is this view of the appellate court which is being contested before us by the State. 6. We must say that the District Magistrate completely misdirected himself when he thought that any compliance with sec. 101 was necessary in the matter of fixing the line of streets before notice for construction of a new building under sec. 108(1) was required. The relevant portion of sec, 108 (1) is as follows :— Before beginning to construct any building or to alter externally or add to any existing building or to construct or reconstruct any projecting portion of a building in respect of which the municipal board is empowered by sec. 102 to enforce a removal or set-back or to construct or reconstruct which the municipal board is empowered by sec, 101 to give permission, the persons intending so to construct, alter, add or reconstruct shall give to the municipal board notice thereof in writing and shall furnish to it at the same time, if required by a bye-law or by special order 10 do so, a plan showing the levels etc." The rest of the sub section is immaterial. 7. The meaning of this sub-section is, in our opinion, clear. This requires notice to the board in three cases— (1) When any building is to be constructed. (2) When any alteration is to be made externally to a building or where any addition is to be made to an existing building, and (3) When there is to be a construction or reconstruction of any projecting portion of a building. 8. So far as the first two cases are concerned, secs. 101 and 102 of the Act have nothing to do with them. It is only where a party wants to construct or reconstruct any projecting portion of a building that secs. 101 and 102 come into play. Learned District Magistrate was clearly wrong in reading sec. 101 and sec. 102 along with the first two parts of this sub-section. Learned counsel appearing for Nemichand, has not controverted this interpretation of sec. 103 given by us above. The section could not possibly bear any other meaning. How the learned District Magistrate convinced himself otherwise passes our comprehension. The ground, therefore, on which the District Magistrate decided to acquit the accused fails. The accused himself had given notice and it was only when he was asked to supply the plan that he seems to have been misguided and to have taken the position of which somehow his lawyer was able to convince the District Magistrate. It is obvious, however, that notice under sec. 108(1) was necessary in this case and that notice was not given in accordance with sec. 108 in the sense that when the Municipal Board asked the accused to supply plan of the building, he refused to do so. In spite of that refusal, he constructed the building through the Municipal Board had forbidden him from doing so. Therefore, he would be clearly guilty under sec. 108(6) of the Act and liable to be fined. The trial Magistrate fined him Rs. 50/-and that see us to us to be more or less a proper amount in the circumstances of this case subject to what we shall say just now. 9. Learned counsel for the accused, however, urges two points in support of the acquittal of Nemichand. His first contention is that the Board was not properly constituted and, therefore there was no question of his giving any notice to the Board as required by sec. 108. 9. Learned counsel for the accused, however, urges two points in support of the acquittal of Nemichand. His first contention is that the Board was not properly constituted and, therefore there was no question of his giving any notice to the Board as required by sec. 108. This contention of the accused has been repelled by the District Magistrate, though we must say that the reasoning by which the learned District Magistrate has repelled is unintelligible to us. However, the point put forward by the accused in his written statement in this connection was this. According to him, the Board in this case was constituted for the last time in February, 1946 and all the members of the Board were nominated members. The accused said that the term of the Board was never extended and, therefore, the old Board had come to an end after three years and as no noted Board had been constituted the old Board could take no action after the 2nd of February, 1949. In this connection, reference was made to sec. 13 of the Bikaner Municipal Act (Act No. VI of 1923). The Act provides that the term of office of the members of the Board except official members shall be fixed by the Government by rules made under the Act and the rules cannot fix the period at more than three years. We find that in rules, the period fixed is three years. But sub-section (3) of sec. 13 lays down that notwithstanding anything contained in sub-sec. (2) by which the period is fixed, or in any rules made by the Government, an outgoing member, shall, unless the Government otherwise direct, continue in office until election or appointment of his successor is notified. It further appears from sub-sec. (2) of sec. 13 of the Bikaner Act that there was some intention of providing retirement of members by rotation, though rules actually did not provide anything about it. In any case. sec. 13 does not fix the duration of the Board, Further, even the duration of the members of the Board, though it might not be more than three years under sub-sec. (2) could be indefinitely extended under sub-sec. In any case. sec. 13 does not fix the duration of the Board, Further, even the duration of the members of the Board, though it might not be more than three years under sub-sec. (2) could be indefinitely extended under sub-sec. (3), If no arrangement was made to replace the members of the board after three years There is nothing to show that any arrangement was made to replace the members of the Board after the period of three years had expired in February, 1949 and it seems that the old members continued and five new members were nominated in July, 1951, in place of others. In the circumstances, it seems that under the Bikaner Municipal law this Board continued indefinitely. All that the Government did was to replace a few members by others and allowed the remaining members to continue. This is what seems to have happened in the case of Bidasar Board and, therefore, when the Rajasthan Town Municipalities Act, 1953, came into force in December, 1951, the Bidasar Board must be deemed to have been continued with the members which then existed. Further, as the term of the members under the Bikaner law could be continued indefinitely, we must hold that these members would at least continue for three years as that was the term of the members of the Board under sec. 15 of the Act, i. e. till 21st of December, 1954. In this view of the matter, it is unnecessary to refer to the extension order passed by the Government in 1953 which seems to be the basis of the District Magistrates view that the Board was continuing. We are, therefore, of opinion that this Board was in existence when the Rajasthan Town Municipalities Act came into force in December, 1951 and as the membership of the Board was indefinite in view of sub sec. (3) of sec. 13 of the Bikaner Municipal Act, members existing on the 22nd of December, 1951, would continue for three years i.e. upto 21st of December, 1954. In this case the prosecution has taken place during this period of three years and, therefore, there is no force in the contention that the Board was not in existence or that the members bad no right to remain as such, 10. The last point that is urged is that the trial court did not examine the accused under sec. In this case the prosecution has taken place during this period of three years and, therefore, there is no force in the contention that the Board was not in existence or that the members bad no right to remain as such, 10. The last point that is urged is that the trial court did not examine the accused under sec. 242 of the Code of Criminal Procedure, nor was the accused examined under sec. 342 of the same Code That is undoubtedly so. The Criminal Procedure Code requires in a summons case that an accused person, as soon as he appears before the Magistrate, has to be told the particulars of the offence with which he is charged and has to be asked to plead to it, but it is not necessary to frame a formal charge. In this case, what happened was that the accused submitted a written statement replying to the complaint against him paragraph by paragraph in the manner of filing a written statement. He also took other pleas just as defendants do when they file written-statements. In effect, however, he was pleading not guilty. It is also clear from this written-statement filed by the accused that he knew very well what the complaint against him was and must have read it, as otherwise, he could not have given a reply paragraph by paragraph. Learned counsel for the accused, however, urges that the omission to comply with the provisions of sec. 242 of the Criminal Procedure Code is an illegality which cannot be cured under sec. 537 of the Criminal Procedure Code and the accused must therefore, be acquitted. There is a difference of opinion between the various High Courts on this point. The High Courts of Calcutta, Mysore and Pepsu are of the view that the omission is an illegality and not an irregularity covered by sec. 537 of the Criminal Procedure Code. The High Courts of Madras, Patna, Assam and Hyderabad and the Judicial Commissioners Court of Nagpur are of the view that this is an irregularity which can be cured under sec, 537 Cr.P.C. provided it has not occasioned the failure of justice. The purpose of questioning the? accused under sec. 242 is to apprise him of the charge against him. The High Courts of Madras, Patna, Assam and Hyderabad and the Judicial Commissioners Court of Nagpur are of the view that this is an irregularity which can be cured under sec, 537 Cr.P.C. provided it has not occasioned the failure of justice. The purpose of questioning the? accused under sec. 242 is to apprise him of the charge against him. If, therefore the accused knows the complaint against him word by word and replies to it paragraph by paragraph and his plea in effect is a plea of not guilty, we are of opinion that there is substantial compliance with s. 242 of the Criminal Procedure Code, and in any case, it cannot be said on the facts of this case that there has been any failure of justice. The accused knew what the charge against him was and gave a detailed reply. Omission to frame a charge is curable provided there has been no prejudge. We fail to see why the omission to state the particulars of the effence should not be similarly curable We are, therefore, of opinion that the view taken by the Madras High Court and the Courts following that Court is more sound and we, therefore, adopt it. The same applies to the omission to question the accused under sec. 342 of the Criminal Procedure Code. If there was prejudice to the accused by the omission to question him, the trial will be vitiated. But, if there was no prejudice, there is no question of the trial being vitiated. In this case, as we have already pointed out, the accused knew very well what the case, against him was and gave a reply paragraph by paragraph to the complaint filed against him. There was, therefore, no question of his being prejudiced simply because be was not formally questioned under sec. 342 of the Criminal Procedure Code. We Overrule, therefore, this objection on behalf of the accused. 11. We hereby allow the appeal and convicting the accused under sec. 108(6) of the Rajasthan Town Municipalities Act, sentence him to a fine of Rs. 50/-. In default of payment of fine, the accused will undergo one weeks simple imprisonment. 1 he fine will be deposited within 30 days of this order.