Nani Gopal Biswas vs The Municipality Of Howrah

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Criminal Appeal No. 60 of 1955

Decision Date: 29/10/1957

Coram: Bhuvneshwar P. Sinha, Vivian Bose

In the case titled Nani Gopal Biswas versus the Municipality of Howrah, the Supreme Court of India rendered its judgment on 29 October 1957. The opinion was written by Justice Bhuvneshwar P. Sinha, who was joined on the bench by Justice Bose and Justice Vivian. The petitioner in the proceedings was Nani Gopal Biswas and the respondent was the Municipality of Howrah. The decision is reported in the 1958 All India Reporter at page 141 and in the Supreme Court Reporter at page 774. The matters before the Court concerned the municipal law provisions of the Calcutta Municipal Act, 1923, specifically sections 299, 300 and 488(1)(c), relating to an encroachment caused by a compound wall.

The record shows that the appellant had been convicted by a Municipal Magistrate under section 488 read in conjunction with section 299 of the Calcutta Municipal Act, 1923, and was ordered to pay a fine of Rs 75 for failing to comply within the stipulated period with a notice served under section 299 requiring the removal of a compound wall that projected onto road‑side municipal land. The Court noted that because the structure in question was a compound wall and not an integral part of the main building, the appropriate provision for the offence was section 300, not section 299, when read together with section 488. On revision, the High Court held that the accused was fully aware of the nature of the charge and that the erroneous reference to section 299 in the notice did not prejudice him. Accordingly, the High Court altered the conviction to one under section 488 read with section 300 and reduced the fine to Rs 50 in accordance with the statutory provision.

On appeal to the Supreme Court, the appellant contended that the conviction was infirm for three reasons: first, the notice was headed as if it were issued under section 299, making a conviction under section 300 illegal; second, the requisition was not lawfully made within the meaning of section 488(1)(c); and third, the appellant suffered substantial prejudice because, had the conviction been correctly recorded under section 299 rather than section 300, he might have been entitled to claim compensation. The Court held that the operative part of the notice clearly indicated that the requisition to remove the encroachment caused by the compound wall was lawfully made. The Court further observed that changing the conviction from section 299 to section 300 did not render the conviction illegal and that, on the facts, the appellant had not suffered any prejudice. In reaching this conclusion, the Court relied on the precedent set in Begu v. The King‑Emperor, L.R. 52 I.A. 191.

The judgment was delivered under the criminal appellate jurisdiction in Criminal Appeal No. 60 of 1955. The appeal was filed against the order dated 2 February 1955 of the Calcutta High Court in Criminal Revision No. 1113 of 1954, which itself challenged the judgment and order dated 14 November 1953 of the Sessions Judge of Howrah in Criminal Appeal No. 185 of 1953, arising out of the earlier judgment and order dated 8 September 1953 of the Municipal Magistrate, Second Class, Howrah, in Case No. 1407C/1952.

On 8 September 1953 the Municipal Magistrate, Second Class, Howrah, issued an order in Case No. 1407C/1952. The appellant was represented by counsel named Sukumar Ghose, while the respondent was represented by counsel identified as B. Sen and P. K. Ghosh on behalf of P. K. Bose. The judgment that follows was delivered on 29 October 1957 by Justice Sinha. This appeal was filed on a certificate of fitness that had been granted by the Calcutta High Court under Article 134(1)(c) of the Constitution. The appeal challenges the judgment and order of a Single Judge of that High Court, which, in its criminal revisional jurisdiction, convicted the appellant under section 488/300 of the Calcutta Municipal Act, 1923, and imposed a fine of Rs 50, thereby substituting an earlier order of conviction under section 488/299 of the same Act that had imposed a fine of Rs 75.

The factual background necessary for this appeal is that the appellant owned premises numbered 10/3 on Swarnamoyee Road in Howrah and had encroached upon a strip of municipal land measuring fifty‑seven feet by three feet along the roadside, land to which the provisions of the Act were applicable. A notice, the terms of which are set out later, was served on the appellant directing him to remove the encroachment, and he failed to comply within the stipulated time. Consequently, prosecution was commenced before a magistrate who, under section 531, is designated as a “Municipal Magistrate.” The Municipal Magistrate tried the case at first instance and convicted the appellant. On appeal, however, the learned Sessions Judge acquitted the appellant on the ground that the prosecution had been instituted after the three‑month limitation period prescribed by section 534 of the Act. The Municipality then approached the Calcutta High Court in its revisional jurisdiction; a Division Bench consisting of Justices J. P. Mitter and S. K. Sen set aside the acquittal and ordered that the appeal be reheard, directing the Municipality to formally place on record official documents showing the date the complaint was lodged. Those documents were duly proved and exhibited by the prosecution in the Sessions Court, and the learned Additional Sessions Judge confirmed both the conviction and the fine, dismissing the appeal. Thereafter, the appellant filed a revision application in the High Court, which was heard by Justice P. N. Mukherjee, whose order dated 2 February 1955 forms the subject of the present appeal. Before Justice Mukherjee, the appellant, as petitioner, primarily raised the question of limitation, and the learned judge concluded that the matter was now finally resolved in view of the proceedings that had taken place in the High Court and the Sessions Court following the remand order issued by the High Court.

The Court observed that the learned Judge agreed with the appellate court that the original complaint was not barred by limitation. The High Court also concurred with the findings of the lower courts on the merits, confirming that the appellant had encroached upon the roadside land belonging to the Municipality. Considering the appellant’s submission that the structure in question was a compound wall rather than an integral part of a main building, the High Court held that any offence, if it existed, would fall under section 300 read with section 488 of the Act, rather than under section 299 read with section 488. The High Court further concluded that, because the accused was fully aware of the nature of the accusation, altering the conviction to section 300 read with section 488 and reducing the sentence to the statutory maximum of fifty rupees would not prejudice him.

Subsequently, the appellant appealed to the High Court and obtained a certificate from the bench presided over by the learned Chief Justice. While granting the certificate, the Chief Justice remarked that it was arguable, and even forcefully arguable, that the alteration of the conviction might not be legally correct. He expressed the view that a notice issued under section 299 to remove a compound wall unattached to any building could not be considered a “lawfully given” notice or a “lawfully made” requisition within the meaning of section 488(1)(c) of the Calcutta Municipal Act, 1923. The Chief Justice further indicated that the alteration raised a question of law, making the case suitable for a further appeal to the Supreme Court.

In the present Supreme Court proceedings, counsel for the appellant emphasized the points raised in the Chief Justice’s order. The Court, however, found no merit in those contentions. It held that changing the conviction from section 299 to section 300 read with section 488 did not alter the substance of the accusation; it merely applied a more appropriate statutory provision to the facts that had been established. The Court referred to a similar issue previously considered by the Judicial Committee of the Privy Council in Begu v. The King‑Emperor. In that case, the appellants were convicted under section 201 of the Indian Penal Code without a charge under that section, which was argued to be a serious procedural departure. The original conviction for murder under section 302 had been set aside by the High Court and substituted with the lesser offence under section 201. After examining sections 236 and 237 of the Code of Criminal Procedure, the Privy Council observed that a person may be convicted of an offence even if no specific charge was framed, provided the evidence supports a charge that could have been made. The Court noted that, unlike the Privy Council case where both the statutory provision and the substantive accusation were altered, the present case involved only a change in the applicable section while the factual findings remained unchanged.

In discussing the authority of the Judicial Committee of the Privy Council, the Court recalled the observation that a person may be convicted of an offence even when no formal charge for that offence appears in the pleadings, provided that the evidence presented is sufficient to establish a charge that could have been made. The Court noted that in the Privy Council case the alteration did not merely involve a change of statutory reference but also a modification of the substantive accusation. Nevertheless, because the evidence introduced by the prosecution, which was originally intended to support a murder charge, also demonstrated the existence of the lesser offence under section 201 of the Indian Penal Code, the Privy Council held that sections 236 and 237 of the Code of Criminal Procedure empower the Court to adjust both the conviction and the corresponding sentence to reflect the offence that the evidence actually substantiates. Applying that principle to the present matter, the Court observed that the factual matrix sought to be proved and ultimately affirmed by the subordinate courts remained unchanged despite the modification of the conviction from section 299 to section 300, read in conjunction with section 488 of the Act. Consequently, the Court concluded that no illegality was involved in substituting a conviction under one provision with a conviction under the other, as the underlying facts and the evidentiary basis were identical.

The next issue addressed by the Court concerned the validity of the notice served on the appellant under section 488(1)(c) of the Act. The provision reads: “Whoever commits any offence by … (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 part of the notice served was worded as follows: “Take notice that you are hereby required by the Municipal Commissioners of Howrah, within thirty days from the date of service of this notice to remove the encroachment caused by a compound wall measuring 57‑0” x 3‑0” upon Swarnamoyee Road attached to premises No. 10/3 and that in default, the provisions of the above Act will be enforced.” The notice was headed as being issued under section 299 of the Act. While the courts below had already determined that the offending portion of the structure fell within the ambit of section 300, which pertains to a wall rather than a building or fixture as contemplated in section 299, the appellant argued that because the notice bore the heading of section 299, the subsequent conviction under section 300 was unlawful and that the requisition had not been “lawfully made.” The appellant further contended that a requisition would be lawful only if the notice had been correctly headed under section 300, thereby making the heading determinative of legality. The Court rejected this contention, holding that the substance of the notice, not its label, governs its legal effect. The notice plainly directed the appellant to remove the encroaching wall, and there was no dispute that the appellant received the notice or that he failed to comply. Accordingly, the Court found that the appellant had incurred the penalty under section 488(1)(c) in conjunction with section 300, and that the requisition was lawfully made despite the erroneous heading.

In this case, the Court examined the substance rather than the label of the notice that had been issued. The operative portion of the notice, as quoted, left absolutely no doubt to the parties that its purpose was to require the removal of the encroachment created by the compound wall. No party contested that the appellant had received the notice, and it was undisputed that the appellant had failed to comply with its terms. Consequently, the Court found that there could be no question that the appellant had attracted the penalty prescribed under section 488(1)(c) read with section 300. Accordingly, the Court held that, irrespective of whether the notice was headed under section 299 or section 300, the requisition had been lawfully made because the appellant had indeed made the encroachment that was the subject of the complaint, and the Municipality was therefore entitled to demand its removal. The appellant was therefore obligated to obey the requisition, and his admitted failure to do so meant that he had incurred the statutory penalty.

The appellant further contended that he suffered substantial prejudice because, had the conviction been recorded under section 299 instead of section 300 read with section 488, he might have been entitled to claim compensation. The Court addressed this argument on several grounds. First, the appellant himself had invited the High Court to set aside the conviction of the lower courts; the High Court corrected the technical defect by adjusting the applicable section, and the fine was consequently reduced. Thus, the appellant could not maintain a genuine grievance regarding the alteration. Second, any right to claim compensation in a civil proceeding was irrelevant to the criminal judgment and order, which solely dealt with the penalty for the offence. Third, the appellant failed to demonstrate that the change of section caused any prejudice in the criminal trial itself. He did not show that he was denied an opportunity to mount an effective defence because the correct provision had not been named in the notice or charge, nor did he establish that he was misled by any such technical error.

Finally, the appellant argued that the prosecution was barred by limitation, relying on additional evidence that had been admitted at the appellate stage following a direction of the High Court. The Court found no merit in this contention. As the learned Additional Sessions Judge had observed, the supplementary evidence placed before the Court removed any reasonable doubt that the prosecution was timely. Therefore, the Court concluded that the appeal lacked any substantive ground and dismissed it.

The Court noted that the complaint had been filed within the period prescribed by law and that it had been presented to the proper authority before the statutory deadline expired. In light of this observation and the other considerations discussed earlier, the Court held that the appeal did not raise any substantive question that could justify overturning the finding that the complaint was timely. Accordingly, the Court concluded that the appeal possessed no merit and could not be sustained. For that reason, the Court ordered that the appeal be dismissed in its entirety. The dismissal of the appeal therefore constituted the final order of the Court on the matter.