Judgment : 1. This criminal revision has been moved against an order passed by the Learned Municipal and Metropolitan Magistrate, Calcutta in connection with a case instituted on a complaint for alleged violation of the provisions of Section 202 (4) of The Kolkata Municipal Act, 1980, rejecting the petitioner’s application under Section 205 of the Code of Criminal Procedure on the ground of not making his first appearance before the Court as well as for quashing of the entire proceedings. 2. Heard the Learned Counsels appearing on behalf of the parties. Perused the materials on record. 3. In the case at hand, the petitioner has been sought to be prosecuted under Section 202 (4) of the Kolkata Municipal Act, 1980, for which punishment prescribed is an imprisonment for a term that may be extended upto six months and with fine not exceeding Rs. 50,000/-. Therefore, the alleged offence is a summons case as not related to an offence punishable with death, imprisonment for life or imprisonment for a term exceeding two years. It is well settled in such case an accused can very well make his first appearance in the Court through his lawyer and even his application for dispensation of his personal appearance can very well be taken into consideration by a Court without insisting him to make first his appearance in Court. Thus, the order impugned cannot be sustained and same is accordingly set aside. In this connection the decision of the Hon’ble Supreme Court in the case of Bhaskar Industries Ltd. Vs. Bhiwani Denim & Apparels Ltd. & Ors., reported in (2001) 7 SCC 401 , can be referred very well. 4. Now, the next question arises for consideration whether the question of quashing of this case can be taken into consideration by this Court on the ground that on the face of allegations made in the complaint no offence has been disclosed. Both the Learned Counsels appearing on behalf of the complainant, the Kolkata Municipal Corporation as well as the Learned Counsel appearing on behalf of the State vehemently opposed the prayer for quashing, contending that neither any ground was taken nor any prayer for quashing was made in the instant criminal revision. Thus, the prayer for quashing has been opposed on mere technicalities. Thus, the prayer for quashing has been opposed on mere technicalities. In my opinion, mere technicalities cannot stand on the way of this Court to exercise its inherent power to do the real and substantial justice the administration of which alone the Court exists. Thus, I am not inclined to entertain the objection raised on behalf of the opposite parties. 5. This is a case where the impugned proceeding relates to an alleged violation of the provisions of sub-section (4) of Section 202 of the Kolkata Municipal Act. The said provision is quoted below; “202. Prohibition of advertisements without written permission of the Municipal Commissioner. 5. This is a case where the impugned proceeding relates to an alleged violation of the provisions of sub-section (4) of Section 202 of the Kolkata Municipal Act. The said provision is quoted below; “202. Prohibition of advertisements without written permission of the Municipal Commissioner. (1) … … … … … … … … (2) … … … … … … … … (3) … … … … … … … … (4) Notwithstanding anything contained in this section or elsewhere in this Act or in any other law for the time being in force, noncommercial advertisement or advertisement related to public interest may, with the consent, in writing, of the owner or the authority, be erected, exhibited, fixed or retained upon or over any land, building, wall hoarding, frame, post, kiosk or structure, or displayed to public view in any manner whatsoever : Provided that no permission of the Municipal Commissioner shall be required for erecting, exhibiting, fixing or retaining upon or over any land, building, wall, hoarding, frame, post, kiosk or structure or displaying any advertisement, under this sub-section: Provided further that no non-Commercial advertisement, other than the advertisement related to public interest, shall be erected, exhibited, fixed or retained on- (i) the surface of any solid wall, or on any other permanent structure, including the terrace, in such manner which shall cover, even partially, any door, window, ventilation shaft, chimney, air-conditioner, balcony or any other portion of the building covered with iron grill; (ii) the building or fence of any educational institution or hospital; (iii) the building used for religious purposes; (iv) the gate or exit requirement of any building; (v) the electrical installation, like transformer, lamp post, switchgear box, meter room; (vi) the water supply installation, like pump house, pump, water main, boosting station or machinery, water tank or water reservoir; (vii) the portion of any public transport; (viii) the buildings or the structures owned by the Central Government, State Government or any local authority or on any heritage building; (ix) the public street which may block the flow of pedestrians or traffic. Explanation.-In this Chapter,- (a) the words ‘non-Commercial advertisement’ mean the advertisement which is related to the campaign of any political party, or an independent candidate, to an election, or any campaign of any mass organization; (b) the words ‘advertisement related to public interest’ mean the advertisement which is related to promoting public health, preservation and conservation of environment, literacy campaign, fire protection, awareness of traffic rules, communal harmony, displayed by the Government or registered non-Government organization, but shall not include the displaying advertisement, in any manner whatsoever, for the proposes of- (i) selling or buying goods, real estates, services, concepts in lieu of financial or any other consideration; or (ii) entertainment or recreational programme; or (iii) setting up any marketing chain or network; or (iv) admission in any tutorial, academy, training centre, commercial school, commercial college, or any other organization which imparts, or shall impart, any education, including technical education, in lieu of financial or any other consideration; or (v) recruitment of personnel through any private agency; (c) the words ‘mass organization’ includes any registered trade union, organized workers’ organization, teachers’ organization, youth organization, women organization, peasants’ organization, students’ organization, pensioners’ organization, traders’ organization, unorganized workers’ organization; (d) the words ‘political party’ shall mean a political party, as defined in clause (f) of section 2 of the Representation of the People Act, 1951 (43 of 1951).” 6. Now, in this case at hand, having gone through the records, I find that the aforesaid criminal proceeding was instituted on the basis of a complaint made to the Court by the Officer-in-Charge, Burtolla Police Station being authorized under Section 620 of the Kolkata Municipal Corporation Act. In the complaint it has been alleged as follows; “As per the direction of Election Commissioner made round in the section area and in course of round and checking on April 20, 2009 at about 18.33 hours a non-commercial advertisement has been noticed on the wall of address 33/H/3, Gorachand Bose Road, Kolkata – 700006 which is a private property having inscription in favour of T.M.C. Candidate for the Uttar Lok Sabha Constituency ‘Vote for Sudip Bandopadhyay’ and thereby violated the provisions of Section 202 (4) of the Calcutta Municipal Act, 1980.” 7. In the aforesaid complaint a reference has been made to a G.D. Entry recorded at Burtolla Police Station vide G.D. Entry No. 2258, at 20.25 hours dated 20.4.2009. In the aforesaid complaint a reference has been made to a G.D. Entry recorded at Burtolla Police Station vide G.D. Entry No. 2258, at 20.25 hours dated 20.4.2009. The certified copy of the said G.D. Entry was produced on behalf of the State at the time of the hearing of this application and same is lying with the records. According to the said G.D. Entry in course of round, wall writing by the political parties without consent were found on different premises, one of which on the premises No. 33/H/3 Gora Chand Bose Road, Kolkata – 700006 by the Trinamul Candidate Sudip Bandopadhyay. Accordingly, a prayer is made before to the Learned Municipal Magistrate, 2nd Court, Kolkata for issuing process under Section 202 (5) of the Calcutta Municipal Act for contravention of provisions of Section 202 (4) of the Kolkata Municipal Act. 8. Therefore, all the allegations that have been found in the complaint as well as in the General Diary Entry, is this, that a non-commercial advertisement has been noticed on the wall of a particular premises, which is a private property, having inscription in favour of the present petitioner with an appeal to Vote for him. 9. It is true according to the said provisions “a non-commercial advertisement” means the advertisement which is related to the campaign of any political party or an independent candidate, to an election or any campaign of any mass organization. However, in order to attract the penal consequences under the said provisions it is essentially required that such non-commercial advertisement shall be erected, exhibited, fixed or written on the surface of any solid wall, or any other permanent structure, including the terrace, in such manner which shall cover, even partially any door, window, ventilation shaft, chimney, air-conditioner, balcony or any other portion of the building covered with iron grill. Although in the complaint in question there is allegation of wall writing in the nature of non-commercial advertisement on the wall of a premises of a private property without permission but there is no allegation that such writing was exhibited or erected, fixed or written on the surface of the wall in a such manner which covered, even partially any door, window, ventilation shaft, chimney, air-conditioner, balcony or any other portion of the building covered with iron grill. Therefore, in absence of those allegations which is the basic ingredients of the provisions of Section 202 (4) of the Kolkata Municipal Corporation Act, no case against the petitioner can said to has been made out. Moreover, admittedly the owner of the premises in question has not been examined by the police, therefore the allegation that such wall writing was done without his consent is without any foundation. 10. Before parting with this judgement, this Court feels as regards to the controversy it would be relevant to refer The West Bengal Prevention of Defacement of Property Act, 1976, although repealed with effect from March 21, 2007 by the West Bengal Prevention of Defacement of Property (Repealing) Act, 2006 (West Bengal Act XXX of 2006). In fact the same was the only statute enforced in the whole of West Bengal with effect from April 1, 1976 to provide for the prevention of defacement of the property of the public and made defacement of public property punishable with imprisonment for a term which may extend to six months or with fine which may extend to Rs. 1,000/- or with both. According to the said statute, since repealed, the term “defacement” includes impairing or interfering with the appearance or beauty, damaging, disfiguring, spoiling or injuring in any other way whatsoever and the word “deface” shall be construed accordingly, whereas, “property” includes any building, hut, structure, wall, tree, fence, post, pole or any other erection; Thus, after the repealing of the West Bengal Prevention of Defacement of Property Act, 1976 with effect from March 21, 2007 by the West Bengal Prevention of Defacement of Property (Repealing) Act, 2006 (West Bengal Act XXX of 2006), in this State, there is no special statute to provide for prevention of defacement of the property of the public and made such defacement punishable either with imprisonment or fine or with both, if committed in course of non-commercial advertisement by mere writing on wall, which includes campaign for a candidate to an election, unless such wall writing even partially covers any door, window, ventilation shaft, chimney, air-conditioner, balcony or any other portion of the building covered with iron grill, may be that according to the guidelines issued by the Election Commission from time to time, the same is not permissible without the written permission of the owner of such property. Consequently, this criminal revision succeeds and the impugned complaint stands quashed. Criminal Section is directed to deliver urgent Photostat certified copy of this Judgement to the parties, if applied for, as early as possible.