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HIGH COURT OF CALCUTTA
AMARESH ROY, S.N. BAGCHI, JJ.
Corporation Of Calcutta - Appellant
Versus
Bivabati Basu - Respondent
Decided on : Dec 23, 1968
CRIMINAL PROCEDURE - Complaint - Facsimile signature of Commissioner of Calcutta Corporation - Whether valid execution of petition of complaint - Calcutta Municipal Act, 1951 (W.B. Act XXXIII of 1951), Secs. 30, 33, 34, 552(1), 585(a) - Code of Criminal Procedure, 1898 (Central Act V of 1898), Secs. 200(aa), 432(2).
Fact of the Case:
The Calcutta Corporation initiated a prosecution against the accused for violating a requisition notice under the Calcutta Municipal Act, 1951. The application for summons, which was treated as a complaint, bore the facsimile signature of the Commissioner of the Calcutta Corporation. The accused challenged the validity of the complaint on the ground that it was not signed by the Commissioner with his own hand.
Finding of the Court:
The Court held that the facsimile signature of the Commissioner of the Calcutta Corporation on the application for summons was not a valid execution of the petition of complaint. The Court further held that only the Corporation of Calcutta, and not any other person, could make a complaint under Section 585(a) of the Calcutta Municipal Act, 1951. The Court also held that the Commissioner of the Calcutta Corporation could not delegate his delegated authority to make a complaint under Section 34 of the Calcutta Municipal Act, 1951.
Issues: 1. Whether the facsimile signature of the Commissioner of the Calcutta Corporation on the application for summons was a valid execution of the petition of complaint? 2. Whether the Corporation of Calcutta, or any other person, could make a complaint under Section 585(a) of the Calcutta Municipal Act, 1951? 3. Whether the Commissioner of the Calcutta Corporation could delegate his delegated authority to make a complaint under Section 34 of the Calcutta Municipal Act, 1951?
Ratio Decidendi: 1. A complaint in writing by a public servant must bear his signature made under his own hand, and a facsimile rubber-stamp of his signature cannot be accepted as proper or valid execution of the petition of complaint. 2. A complaint alleging any offence against the provisions of Calcutta Municipal Act or any rule or by-law made thereunder can only be made by Corporation of Calcutta as complainant under section 585 of the Calcutta Municipal Act. 3. Power to make such complaint is a function under Calcutta Municipal act. Making of the complaint is governed by Criminal Procedure code. The complaint may be signed by the Commissioner under authority delegated under section 30 of the Calcutta Municipal act, for and on behalf of the complainant, Corporation of calcutta. Commissioner cannot delegate that delegated authority under section 34 of the Calcutta municipal Act. 4. The signature on the petition of complaint is required by section 200 of the Code of Criminal procedure and not by Calcutta Municipal Act; as such section 552 of the Calcutta municipal Act does not apply. Therefore, facsimile of the signature of the Commissioner stamped on the complaint cannot be deemed to be properly signed by the Commissioner. 5. Application for summons filed as complaint in this case mentioning as complainant name of a person other than Corporation of Calcutta and not having been signed by the hand of the Commissioner and also for the reason that it is not in proper form prescribed by Criminal procedure Code is not complaint on which Magistrate can take cognizance of the offence alleged or try the accused person.
Final Decision: The Court answered the point of law referred by the learned Magistrate in this Reference under section 432 (2) of the Code of Criminal Procedure according to the view expressed by my learned Brother that (1) A petition of complaint in writing by a public servant must bear his signature made under his own hand, and a fascimile rubber-stamp of his signature cannot be accepted as proper or valid execution of the petition of complaint. (2) A complaint alleging any offence against the provisions of Calcutta municipal Act or any rule or by-law made thereunder can only be made by Corporation of Calcutta as complainant under section 585 of the Calcutta Municipal Act. (3) Power to make such complaint is a function under Calcutta Municipal act. Making of the complaint is governed by Criminal Procedure code. The complaint may be signed by the Commissioner under authority delegated under section 30 of the Calcutta Municipal act, for and on behalf of the complainant, Corporation of calcutta. Commissioner cannot delegate that delegated authority under section 34 of the Calcutta municipal Act. (4) The signature on the petition of complaint is required by section 200 of the Code of Criminal procedure and not by Calcutta Municipal Act; as such section 552 of the Calcutta municipal Act does not apply. Therefore, facsimile of the signature of the Commissioner stamped on the complaint cannot be deemed to be properly signed by the Commissioner. (5) Application for summons filed as complaint in this case mentioning as complainant name of a person other than Corporation of Calcutta and not having been signed by the hand of the Commissioner and also for the reason that it is not in proper form prescribed by Criminal procedure Code is not complaint on which Magistrate can take cognizance of the offence alleged or try the accused person.
1. THIS is a reference under section 342, sub-section (2) of the Code of Criminal Procedure by Sri A. K. Datta, Senior Municipal Magistrate, who is also a Presidency Magistrate of Calcutta.
2. THE point of law referred to this Court for its opinion runs as follows :-
"is it the law, in view of the provision of section 552 (1) of the Calcutta municipal Act, 1951 that that in the instant petition of complaint the facsimile signature of the Commissioner of calcutta Corporation should be accepted as proper and valid execution of the petition of complaint by the commissioner, so that the Court may proceed upon such a petition of complaint to try the accused for the offence as charged therein ?"
The facts of the case as mentioned in the letter of reference of the learned Magistrate are as follows : -The Case No. 468b of 1964 before the Senior Municipal Magistrate, calcutta, appointed under section 579 of the Calcutta Municipal Act, 1951, was initiated upon an application for summons under section 537, read with rule 5 (1) of Schedule XVII of the calcutta Municipal Act, 1951. Such application is in a printed form with six columns. The first column - name and designation of the complainant -contains the name of Sri Kalidas Basu, chief Insecure Building Surveyor. The second column is for the name and residence of accused wherein appears the name of Sm. Biva Bati Basu, 1/1a, maratha Ditch Lane, Shambazar, calcutta. The third column is for the offence complained of and date of commission. In this column, the allegations of facts are : Failing to comply with the requisition of notice under rule 5 (1) of Sch. XVII, served on 28. 12. 63 to take down the cracked parapet walls on the roof and by securing and repairing the building adequately by clanging its iron rafters with new ones and repairing the cracks in the walls and by half terracting (Sic.) the roof to prevent leakage and by repairing the broken rain water pipes for better drainage and by plastering the inside and outside walls where necessary and by doing all other works to make the building safe and stable as the same lies in a dangerous condition.
3. LASTLY inspected on 10. 3. 64 when it was found that the requisition of notice under Rule 5 (1) of Sch. XVII, has not been complied with.
4. THE 4th column is for the plea of accused which is blank. The 5th column is for offence proved and the 6th column is for order.
This application for summons was filled on 20-3-64 and at the bottom of the application form in the left hand corner there is the printed word 'approved' with the signature of one k. D. Basu with date 16-3-64 and below that word are the words 'ch. I. B. S. '. To the right hand side of the said signature, is a signature with the date reading 'priya Guha, CA 19-3-64. ' To its right hand side are the printed words "commissioner, Corporation of calcutta". Above those words, appears a facsimile impression of a rubber stamp reading as 'b. Ghosh'. To its right hand side there is a signature, reading as S. Roy, 10-3-64, and down this signature, are the letters and figures I. B. S. (IV. The learned magistrate proceeded to try the accused sm. Biva Bati Basu for an offence allegedly committed in violation of sub-rule (1), Rule 5 of Sch. XVII of the calcutta Municipal Act, 1951 read with section 537 of the same Act. The allegation of facts constituting the offence, as we have already observed, appear in column 3 of the application for summons referred to above. The accused had put up appearance through her agent before the Municipal magistrate. The agent took several adjournments in the case for effecting compliance with the Corporation's; requisition but ultimately failed. Thereafter, the Magistrate proceeded to hold the trial upon the charge made by the corporation. In course of the proceeding before the learned Magistrate, the accused through her Advocate raised a preliminary objection as to the maintainability of the case. It was contended by the learned Advocate of the a
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