# MUNICIPAL CORPORATION OF DELm v. JAGDISH LAL SON OF RADHAKISHAN & ANR

- **Citation:** [1970] 1 S.C.R. 579
- **Court:** Supreme Court of India
- **Decided:** 1969-05-27
- **Bench:** J. C. Shah, S. M. S!Kri, V. Ramaswami
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/municipal-corporation-of-delm-v-jagdish-lal-son-of-radhakishan-anr-4665
- **Pages:** 6

## Headnote

Prevention of Food Adulteration Act 1964 (37 of 1964),
s. 20Afunicipality authorizing 1'1unlcipal Prosecutor to file complaint on its
behalf-Accused acquitted-Municipality 1vhether 'complainant'
lvithin
ineaning of s. 417(3) of Code of Civil Procedure-Whether competent to
file application for special leave to appeal.
A· complaint under s. 7 read with s. 16 of the Prevention of Food
Aduiteration Act, 1964 \vas filed against the respondent.
It was filed by
the }..funicipal Prosecutor V.'ho had been authorised to file such compl~ints
bv a resolution passed -by the appellant corporation under s. 20 of the
aforesaid Act.
On the respondent being acquitted the appellant corporat~on filed an application in the High Court for special leave to appeal
under s. 417 of the Cade of Criminal Procedure.
The application was
allov.1ed.
When the appeal came up for hearing a pfeliminary objection
\vas raised by the respondent that the complaint having been filed by
the }\funicipal Prosecutqr the corporation was not a 'complainant' within
the meaning of s. 417(p) of the Code of Criminal Procedure and therefore special leave to appeal should not have been granted.
The High
Court upheld the prelil))inary objection
and dismissed the appeal.
By
special leave the corpoiation appealed to this Court.
HELD: (i) Under s. 476(1) (h) of the Delhi Municipal Corporation
Act the person competent to institute legal proceedings is the Commissioner.
However the present case was governed not by that provision
but by s. 20 of the Prevention of Food Adulteration Act. 1964 which provides that a prosecutiori under that Act may be instituted "by the Central
Government or the State Government or a local authority or a person
authdrised in this beha]f, by general or special
order by the Central
Government or the1 St'ate Government or a local authority".
Section
2(vii) of the Prevention of Food Adulteration Act defines a "local authority" to mean "in the case of a local area which is a municipality, the
municipal board or municipal cdrporation".
The Delhi Municipal Corporation was a local authority within the meaning of s. 20~ [581 H; 582 C,
G-H: 584 A]
(ii) The Municipal! Prdsecutor had filed the complaint against the
respondent under autMritv given to him by the resolution of the Delhi
:rvrunicioal Corporation under s. 20 of the Prevention of Food Adulteration
Act.
In filing the complaint the said prosecutor was not actin~ on his
own personal behalf but was acting as an agent authorised by the Delhi
Municipal Corporation to file the complaint. It must therefore be deemed
in law that the Delhi Municipal Corporation was the 'complainant' in the
case. for according to ~be Latin maxim. "One who does an act through
another is deemed in law to do it himself." [583 H; 584 C-D]
Being thus the co~plainant in the case the appeIIant Corporation
could properly file the application under s. 417 of the Code of Criminal
Procedure.
[Case remanded to High Court for disposal according to
Jaw.] [584 E]
59 0
SUPREME COURT REPORTS
[1970] 1 s.c.R.
flallr11·dt1s Ai.:arwafa \", J. C. c:hak.rcH'c.rry, [1962] J S.C.R. 739 and
A
:\'a;.ir Ah:i1aci v: Kine; Fn1peror, 63 I.A. 372 as 381, referred to.
CRt~HNAL APPELLATE JURISDICTION : Criminal Appeal No. 8
of 1966.
Appeal by special leave from the judgment. and order date~
April 29, 1965 of the Punjab High Court, Circuit Bench at Dellu
in Criminal Appeal l\o. 164-D of 1962.
Bishan Narain, K. K. Raizada and A. G. Ratnaparkh1, for the
appe:Jant.
Sardar Bahadur and Yougindra Khushalani, for respondent
No. I.
R. 1\'. Sachthey, for respondent No. 2.

## Text

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MUNICIPAL CORPORATION OF DELm
v.
JAGDISH LAL SON OF RADHAKISHAN & ANR.
May 27, 1969
[J. C. SHAH, S. M. S!KRI AND V. RAMASWAMI, JJ.]
Prevention of Food Adulteration Act 1964 (37 of 1964),
s. 20Afunicipality authorizing 1'1unlcipal Prosecutor to file complaint on its
behalf-Accused acquitted-Municipality 1vhether 'complainant'
lvithin
ineaning of s. 417(3) of Code of Civil Procedure-Whether competent to
file application for special leave to appeal.
A· complaint under s. 7 read with s. 16 of the Prevention of Food
Aduiteration Act, 1964 \vas filed against the respondent.
It was filed by
the }..funicipal Prosecutor V.'ho had been authorised to file such compl~ints
bv a resolution passed -by the appellant corporation under s. 20 of the
aforesaid Act.
On the respondent being acquitted the appellant corporat~on filed an application in the High Court for special leave to appeal
under s. 417 of the Cade of Criminal Procedure.
The application was
allov.1ed.
When the appeal came up for hearing a pfeliminary objection
\vas raised by the respondent that the complaint having been filed by
the }\funicipal Prosecutqr the corporation was not a 'complainant' within
the meaning of s. 417(p) of the Code of Criminal Procedure and therefore special leave to appeal should not have been granted.
The High
Court upheld the prelil))inary objection
and dismissed the appeal.
By
special leave the corpoiation appealed to this Court.
HELD: (i) Under s. 476(1) (h) of the Delhi Municipal Corporation
Act the person competent to institute legal proceedings is the Commissioner.
However the present case was governed not by that provision
but by s. 20 of the Prevention of Food Adulteration Act. 1964 which provides that a prosecutiori under that Act may be instituted "by the Central
Government or the State Government or a local authority or a person
authdrised in this beha]f, by general or special
order by the Central
Government or the1 St'ate Government or a local authority".
Section
2(vii) of the Prevention of Food Adulteration Act defines a "local authority" to mean "in the case of a local area which is a municipality, the
municipal board or municipal cdrporation".
The Delhi Municipal Corporation was a local authority within the meaning of s. 20~ [581 H; 582 C,
G-H: 584 A]
(ii) The Municipal! Prdsecutor had filed the complaint against the
respondent under autMritv given to him by the resolution of the Delhi
:rvrunicioal Corporation under s. 20 of the Prevention of Food Adulteration
Act.
In filing the complaint the said prosecutor was not actin~ on his
own personal behalf but was acting as an agent authorised by the Delhi
Municipal Corporation to file the complaint. It must therefore be deemed
in law that the Delhi Municipal Corporation was the 'complainant' in the
case. for according to ~be Latin maxim. "One who does an act through
another is deemed in law to do it himself." [583 H; 584 C-D]
Being thus the co~plainant in the case the appeIIant Corporation
could properly file the application under s. 417 of the Code of Criminal
Procedure.
[Case remanded to High Court for disposal according to
Jaw.] [584 E]
59 0
SUPREME COURT REPORTS
[1970] 1 s.c.R.
flallr11·dt1s Ai.:arwafa \", J. C. c:hak.rcH'c.rry, [1962] J S.C.R. 739 and
A
:\'a;.ir Ah:i1aci v: Kine; Fn1peror, 63 I.A. 372 as 381, referred to.
CRt~HNAL APPELLATE JURISDICTION : Criminal Appeal No. 8
of 1966.
Appeal by special leave from the judgment. and order date~
April 29, 1965 of the Punjab High Court, Circuit Bench at Dellu
in Criminal Appeal l\o. 164-D of 1962.
Bishan Narain, K. K. Raizada and A. G. Ratnaparkh1, for the
appe:Jant.
Sardar Bahadur and Yougindra Khushalani, for respondent
No. I.
R. 1\'. Sachthey, for respondent No. 2.
The Judgment of the Court was delivered by
Ramnswami, J.
On August 29,
1960 Shri Sham Sundar
Mathur, Municipal Prosecutor of th~ Delhi Municipal Corporation filed a complaint in the court of Magistrate First Class against
the respondent, Jagdishlal under s. 7 read with s. 16 of the Prevention of Food Adulteration Act, 1954 (37 of 1954). In the
said complaint Shri Sham Sundar Mathur said that he was competent to file the complaint under s. 20 of the aforesaid Act in accordance with a resolution passed by the Corporation in its meeting
held on December 23, 1968. By his order dated April 30, 1962
the learned Magistrate acquitted the respondent.
The Delhi
Municipal Corporation made an application to the High Court
asking for special leave under s. 417 of the Code of Criminal Procedure to appeal against the order of acquittal. The application
was granted on September 3, 1962.
When the appeal came up
for hearing a preliminary objection was raised on behalf of the
re~pondent that the only person competent to tile the appeal was
the complainant, Shri Sham Sundar Mathur. But the leave applicalion was not filed by him and, therefore, the Municipal Corporation was not competent to prosecute the appeal. It was contended
th~t only the complainant was competent to present an application for special leave under s. 417(3) of the Code of Criminal
Procedure.
As the complainant in this case was Shri Sham
Sundar Mathur the appeal could not be filed by the Delhi Miinic.ipal Corporation. The Hig? c.ourt upheld the preliminary objectmn of the respondent and d1sm1ssed the appeal by its order dated
April 29, 1965. This appeal is brought by special leave on behalf
of the Delhi Municipal Corporation against the judgment of the
High Court dated April 29, 1965 in Cr. Ar. No. 163-D of 1962.
Section 20 of the Prevention of Food Adulteration Act, 1954
states :
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MUNIC. CORP. DELHI v. JAGDISH (Ramaswam1, J.)
58 I
"(1) No prosecution for an offence under this Act
shall
be
instituted
except
by,
or
with
the
written consent of, the Central Government or the State
Government or a local authority or a person authorised
in this behalf, by general or special order, by the Central Government or the State Government or a local
authority :
Provided that a prosecution for an offence under this
Act may be instituted by a purcha,er referred to in section 12, if he produces in court a copy of the report of
the public analyst along with the cc;mplaint.
Section 417, sub-ss. (1), (2) and.(3) of the Code of Criminal
Procedure after its amendment by Act 26 of 1955 provide :
" ( 1) Subject to the provisions of sub-section ( 5),
the State Government may, in any case, direct the Public
Prosecutor to present an appeal to the High Court from
an original or appellate order of acquittal passed by any
Court other than a High Court.
(2) If such an order of acquittal is passed in any
case in which the offence has been investigated by the
Delhi Special Police Establishment constituted under the
Delhi Special Police Establishment Act, 1946 (XXXV
of 1946), the Central Government may also direct the
Public Prosecutor to present an appeal to the High
Court from the order of acquittal.
(3) If such an order of acquittal is passed ;n any
case instituted upon complaint and the High Court, on
an application made to it by the complainant in this
behalf, grants special leave to appeal from the order of
acquittal, the complainant may present such an appeal
to the High Court.
,,
The principal question to be determined is whether the complaint dated August 29, 1960 was instituted by the Delhi Municipal Corporation. It is argued on behalf of the respondent that
the complaint petition was not made and signed by the person
competent under the Delhi Municipal Corporation Act, 1957 to
exercise powers of the Corporation in the matter of institution of
legal proceedings. In our opinion there is substance in this contention. The only provision under the Delhi Municipal Corporation Act, 1965 which confers power to institute legal proceedings
is s. 476(1) (h) which states:
.• 4('
58 2
SuPREME COURT REPORTS
[1970] 1 S.C.R.
" ( 1 ) The Commissioner may-
(h) institute and prosecute any suit or other !egal
proceeding, or with the approval of. the Stand~ng Committee withdraw from or compronuse any sun or any
claim for any sum not exceeding five hundred rupees
which has been instituted or made in the name of the
Corporation or of the Commissioner;
,,
It is clear that the phrase "other legal proceedings" includes
the power to
institute
a complaint before a Magistrate
and
hen:e
:t
is
the
Commissioner
alone
who
could
exercise the power as there is no other provision .in the
Act which confers such power on anyone else.
This
view
1s
supported bv the decision of this Court in
/j,1t!avi'1~ Agarwa/a v. }. c. Chakramrty( 1 ) in which it was pointed out that
a complaint under The Calcutta ~uoicipal Act, 1923 as applied
to the ~unicipality of Howrah, would only be tiled by the authorities mentioned therein and not by an ordinary citizen
Section
537 of that Act provided that the Commissioners may institute,
defend or withdraw from legal proceedings under the Act; under
s. 12 the Commissioners can delegate their functions to the Chairman, and the Chairman may in his turn delegate the same t,) the
Vicc-Chaimian or to any municipal ollicer.
It was obsened in
that case that the machinery provided in the Act must be followed
in enforcing its provisions, and it \&;as against the tenor and ~ .. rieme
of the Act to hold that s. 537 was merely enabling in nature. The
principle invoked in that case was that adopted by the Privy Council in Na~ir Ahmad v. King Emperor (') viz. : that where a pawer
is given to do a ceriain thing in a certain way, the thing must be
done in that way or not at all.
It was, therefore, held that il a
legal proceeding was imtituted under the Municipal Act in question, it must be done in accordance wi:h the provisions of the Act
and not otherwise.
But the question presented for determination in the present
appeal is somewhat different. Under s. 20 of Act 37 of 1954 the
prosecution for the offence may be instituted either (a) by the
Cemral Government or t.he State Government or a local authority
or (b) a person authonsed m that behalf by general or special
order by the Central Government or the State Government or a
local authority. Section 2(vii) of Act 3 7 of 1954 defines a "local
authori~" to mean "in the case of a local area which
is
a
(tl [1962) J S.C.R. 739.
I 1) 6.1 i.A. Jn" lSt.
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MUNIC. CORP. DELHI v. JAGDISH (Ramaswami, J.)
583
pality, the municipal board or municipal corpora~ion_." A ~om
plaint under s. 20 of the A_ct may, therefore, be mst1t~ted ~ith_er
by the Municipal Corpora!Jon or by a person authonsed m its
behalf by general or special order by th~. Municipal Corporation.
The Resolution of the Delhi Municipal Corporation dated December 23, 1958 reads as follows:
"Subject : Authorising the Municipal Prosecutor
and the Assistant Municipal Prosecutor to launch Prosecutions under section 20 of the Prevention of Food
Adulteration Act, J 954.
The area under the jurisdiction of the Delhi Municipal Corporation bas been declared a "local area" under
s. 2 (vii) of the Prevention of Fo;Jd Adulteration Act
vide Chief Commissioner's Notification No. F.32(30)
58-M and PH(i) dated 13th June, 1958 published in
the Delhi Gazette. (Part IV) dated 26th June, 1958 and
consequently the ' Municipal Corporation of Delhi is
the Local Authority for that area within the meaning of
section 2(vii) of _the said Act.
·
Section 20 of. the Prevention of Food Adulteration
Act, 1954 contemplates the appointment of persons who
shall be authoris~d to institute prosecutions under this
Act by the Local' Authority concerned.
Shri Sham Sundar Mathur, M.A., LL.B., Municipal
Prosecutor and Shri Bankey Behari Tawkley, Assistant
Municipal Prosecutor were authorised by the erstwhile
Delhi Municipal Committee nnder the above section."
"Shri Vijay ~umar Malhotra moved the following
resolution, which: was seconded by Shri Prem Sagar
Gupta:
Resolved that !the recommendations of the Commissioner vide letter No. 139/Legal/58 dated
1-12-58
regarding authorising the Municipal prosecutor and the
Assistant Municipal Prosecutor to launch prosecutions
under section 20 of the Prevention of Food Adulteration Act, 1954 be ar;:iroved.
The resolution was carrk:I."
1n the present case Sh}'i Sham Sundar Mathur, Municipal Prosecutor !ileri the complaint under s. 20 of Act 37 of 1954 under
U4Sur.C.l/69-8
SUPRE~E COURT REPORTS
(1970] l S.C.R.
the authority given to him by the resolution of the Municipal Corporation.
Since the Municipal Corporation, Delhi, is a local
authority within the meaning of s. 20 of Act 37 of ! 954 and since
it conferred authority on the Municipal Prosecutor the complaint
was properly filed by Sham Sumlar Mathur.
The question is
whether the Delhi Municipal Corporation or Shri Mathur was the
complainant within tbc meaning of s. 417(3) of the Code of
Criminal Procedure. It was argued on behalf of the respondent
that tbe complainant was Shri Sham Sundar Mathur, the Muuicipal Prosecutor and the Delhi Municipal Corporation was not competent to make an application for special leave under s. 417(3),
Cr. P.C.
We are unable to accept this argument as correct. It
is true that Shri Sham Sundar Mathur filed the complaint petition
on August 29, 1960. But in filing the complaint Shri Mathur
was not acting on his own personal behalf but was acting as an
agent authorised by the Delhi Municipal Corporation to file the
complaint.
It must, therefore, be deeined in the contemplation
cf law that the Delhi Municipal Corporation was the complainant
in the case.
The maxim qui per a/ium facit per seipswn facere
videtur (he who docs an act through another is Jccmed in Jaw
to do it himself) illustrates the general doctrine on which the law
relating to the rights and liabilities of principal and agent depends.
We are, therefore, of opinion that Shri Mathur was only acting in
" representative capacity and that the Delhi Municipal Corporation was the complainant within the meaning of s. 417(3) of the
Code of Criminal Procedure and the petition for special leave and
the appeal petition were properly instituted by the Delhi Municipal Corporarion.
For these reasons we allow the
~~peal, set
aside the judgment of the High Court dated April 9. 1965 and
direct that the appeal should be remanded to the High Court for
being heard afresh and disposed of according to Jaw.
G.C.
Aprea/ alloived.
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