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Criminal Revision No. 1235 of 1967, decided on 28th March 1968.

Ss. 115 & 116 read with Second Schedule, Item 62‑Prosecution of persons for default in payment of rent of shops belonging to Municipal Committee‑Held, not abuse of process of criminal Court.

Ss. 115 & 116‑Criminal proceedings started against defaulters In pursuance of resolution passed by Municipal Committee in a meeting presided by Chairman happening to be A. D. M. Such A. D. M. proceeding in a summary way and convicting defaulters‑Order of conviction, held, hit by principle of natural justice‑Procedure laid down In S.191; Cr. P. C. not adhered to‑Proceedings invalidated and hence quashed‑Criminal Procedure Code (V of 1898), Ss. 191 & 336.

Zahur Ullah for Petitioners.

Muzaffar Ahmad for the State.

This case has been reported by the learned Sessions Judge, Jhelum, vide his order dated 22‑9‑1967 with a recommendation for‑quashment of proceedings.

2. The five petitioners before the Sessions Judge were convicted lay the Additional District Magistrate, Jhelum, under section 115 of the Municipal Administration Ordinance 1960, for having defaulted in the payment of rent due to the Municipal Committee from them in respect of certain shops in their occupa tion. They were fined Rs. 100.00 each and challenged their conviction before the learned Sessions Judge.

3. The observation of the learned Sessions Judge that the prosecution of the petitioners in respect of realisation of rent due to the Municipal Committee in a criminal Court is obviously an abuse of process of criminal Court for a Civil liability is misconceived inasmuch as section 115 of the Municipal Administration Ordinance makes every act or omission specified in the Second Schedule, an offence punishable under section 116. The first item of the Second Schedule relates to the evasion of the payment of a tax or other impost lawfully levied by a Municipal Committee. Item 62 ibid which is omnibus in nature, make every contravention of the provisions of the Ordinance, the rules, or by‑laws, or of any order, direction, notice or declaration mad or issued thereunder, to be an offence punishable under section 116. It would thus be wrong to say that criminal proceedings initiated at the instance of the Municipal Committed in this regard amounted to an abuse of the process of Court.

4. Again the learned Sessions Judge, appears to have in advertently mentioned the District Magistrate as the Chairman of the Municipal Committee, which is factually incorrect. It was asserted on behalf of the convicts that the learned A. D. M. himself was the Chairman instead and it was in a meeting presided over by him that a resolution was adopted for initiation of criminal proceedings against the defaulters including these five persons. The learned counsel for the State having verified this position on the telephone also states that the A. D. M. is the Chairman of the Municipal Committee, Jhelum. This, however, makes all the difference and the impugned order would obviously be hit by the principle of natural justice, as nobody can be Judge in his own cause. In the circumstances, the provisions of section 191, Cr. P. C. are clearly attracted. The procedure laid down in this section was obviously not adhered to, which would invalidate the proceedings. In this view of the matter, I accept the recommendation made by the learned Sessions Judge an quash the proceedings.

5. Before parting with this case, I would, however, like to add that if the District Magistrate had been the Chairman; as inadvertently mentioned by the learned Sessions Judge, the position would be quite different inasmuch as under section 118 of the Ordinance, cognizance of an offence could only be taken on a complaint in writing received from the Chairman; or a person generally or specially authorised by the Municipal', Committee in this behalf, and even if it is assumed that the complaint is tiled by the Chairman himself who unlike the A. D. M. would not be a Judge in his own cause, it cannot be said with any degree of reasonableness that an accused person, in these circumstances,, would be prejudiced simply because the complainant, though in a purely formal manner, happens to be no less a person than a District Magistrate. Such a position would‑‑ obviously lead ten absurd consequences.

Proceedings quashed.

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