Gopal Narain v. State of Uttar Pradesh & Anr.

SnRBA RAo J.-This petition fined under Art. 32 of the Subba Rao, f. Constitution raises the question of the constitutional vali-dity of s. 128(1) of the Uttar Pradesh Municipalities Act, 1916 (U.P. Act No. II of 1916), hereinafter called the Act, insofar as it authorizes a Municipal Board to impose all or any of the taxes mentioned therein in any part of the muni-cipality.

Bareilly is an old City in the State of Uttar Pradesh.

In the middle of the 19th century it consisted of small houses situated in congested localities with narrow lanes.

At some distance away from the said City area there exist-ed even then a cantonment area. Between the City area and the Cantonment area there was a tract of uneven and undeveloped land. The Municipal Board of Bareil-ly acquired a part of the said land and, together with some nasul land, developed it at a considerable cost. The newly developed area came to be known as the Civil Lines.

The Municipal Board has provided special amenities for the residents of that area. The said facts and the par-ticulars of the amenities provided are given in the coun-ter-affidavit filed on behalf of the Municipal Board and 1963 a map of the Bareilly City and the Cantonment area is

also annexed thereto. A glance at the map discloses that Gopal Narain the City of Bareilly is divided into three separate blocks-

v. the old City, the Cantonment and the Civil Lines. State of U ttar Pradesh The Civil Lines area is situated between the old City and

and Anl'. the Cantonment. We have no reason not to accept the

f. said facts given in the counter-affidavit as representing the Subba Rao, division of the City of Bareilly based on its geographical

features and strata of development.

In the Civil Lines area, which the Municipal Board acquired and developed, the said Board imposed house tax from January 31, 1870. In the year 1916 the Act was passed in order to consolidate and amend the laws relat-ing to municipalities in the State of Uttar Pradesh. The Act came into force on July 1, 1916. After the Act came into force, the old tax was abolished and a new house tax was imposed by the Municipal Board of Bareilly in the Civil Lines area with effect from January l, 1918. A latrine tax was also imposed with effect from May 25, 1918, but it was replaced by scavenging tax with effect from April 1, 1939. The petitioner, a resident of the Civil Lines area, who owns a house bearing door No. 43 there-in, filed this writ petition in this Court for a declara: ti on that s. 128 ( 1) of the Act, insofar as it authorizes the Municipal Board to impose a tax in any part of the mu-nicipal area, is void and for the issue of a writ of man-damus against the Municipal Board, Bareilly, directing it not to realize the said house tax and scavenging tax from him. To the said petition, the State of Uttar Pra-desh and the Municipal Board, Bareilly, are made respon-dents 1 and 2 respectively.

Mr. Goyal, learned counsel for the petitioner, raised before us six contentions, but they may be broadly classi-fied under the following four heads: ( 1) Section 128 ( 1) of the Act, insofar as it authorizes the Municipal Board to impose the taxes mentioned therein in any part. of the municipality, offends Art. 14 of the Constitution and, therefore, is void. (2) Even if the section does not violate the said article, the notification issued by the Municipal Board imposing the said two taxes, namely, house tax and scavenging tax, confining them only to the Civil Lines area was void inasmuch as the taxes could not be justified on the basis of the doctrine of classifica-1963 tion. (3) The said taxes were imposed in violation of the statutory provisions of the Act and, therefore, the said Gopal Nflf'ain v. imposition on him in respect of his building infringes his State of fundamental right under Art. 19 ( 1) ( f) of the Constitution. U ttar Pradesk And (4) section 131(1)(b) of the Act also .violates Art. 14 and Anr. of the Constitution in as much as it confers an arbitrary power on the Municipal Board to impose taxes of any Subba Rao, amount on any person or class of persons without laying down any clear policy for classification.

Mr. Pathak, learned counsel for the Municipal Board, controverts the said arguments of the petitioner. We shall deal with his contentions in appropriate places.

To appreciate the first contention it would be conve-nient to read at the outset the relevant part of s. 128 of the Act. It reads :

Section 128. (!) Subject to any general rules or special orders of the State Government in this behalf, the taxes which a board may impose in the whole or any part of a municipality are- (i) a tax on the annual value of buildings or lands

or both;

* * * * * • (xi) a scavenging tax ; ..

* * * * No general rules were made or special orders issued by the State Government in the matter of imposition of a tax in any part of a municipality. It is argued that the power conferred on the Municipal Board to impose a tax on any part of the municipality is a naked and arbitrary power, that the Act does not disclose any policy or give any guidance for making a valid classification and that, therefore, the section, to the said extent, violates the pro-visions of Art. 14 of the Constitution. The law on the subject is well settled. Das C.J., in Ram Krishna Dalmia v. Shri Justice S. R. Tendolkar('), after a consideration of the earlier decisions, pointed out that a statute which may come up for consideration on a question of validity under Art. 14 of the Constitution might be placed in one of the five classes mentioned therein. Classes (iii) and (iv), which are relevant to the present enquiry, reads:

( 1) [1959] S.C.R. 279 .

56-2 S. C. India/64 "(iii) A statute may not make any classification of the persons or things for the purpose of applying Gopal Narain iu provisions but may leave it to the discretion of

y.

State of the Government to select and classify persons or things Uttar Pradesh to whom its provisions are to apply. In deter-

and Anr. mining the question of the validity or otherwise of such a statute the court will not strike down the law Subba Rao,/. out of· hand only because no classification appears on its face or because a discretion is given to the Govern-ment to make the selection or classific~tion but will go on to examine and ascertain if the statute has laid down any principle or policy for the guidance of the exercise of discretion by the Government in the matter of selection or classification, on the ground that the statute provides for the delegation of arbi-trary and uncontrolled power to the Government so as to enable it to discriminate between persons or things similar! y situate and that, therefore, the discrimi-nation is inherent in the statute itself. In such a case the court will strike down both the law as well as the execUtive action taken under such law, as ir did in State of West Bengal v. Anwar Ali Sarkar(')., Dwarka Prasad Laxmi N¥train v. The State of Uttar Pradesh(') and Dhirendra Krishna Manda/, v. The Superintendent and Remembrancer of Legal Af-fairs(')."

"(iv) A statute may not make a classification of the persons or things for the purpose of applying its provi~ions and may leave it to the discretion of the Government to select and classify the persons or things to whom its provisions are to apply but may at the same time lay down a policy or principle for the guidance of the exercise of discretion by the Gov-ernment in the matter of such selection or classi-fication, the court will uphold the law as constitu-tional as it did in Kathi Raning Rawat v. The State of Saurashtra(')."

The question, therefore, to be considered is whether the Act has laid down a policy for the guidance of the Muni .. cipal Board in the matter of selection of any part of the municipality for the purpose of imposition of any of the 196'3 taxes mentioned in s. 128 of the Act.

In this context, because of a Legislature's reluctance Gopal Narain v. or inadvertence to express itself clearly of its policy, a Swe of heavy and difficult burden is often placed on courts to dis-U tt.r Pradesh cover it, if possible, on a fair reading of the provi-and Anr. sions of the Act. Some Acts expressly lay down the po-licy to guide the exercise of discretion of an authority on Subba Rao/. whom a power to classify is conferred. Some Acts, though they do not expressly say so, through their provisions may indicate clearly, by necessary implication, their policy affording a real guidance for the exercise of dis-cretion conferred on an authority thereunder. While a court should be on its guard not to enter into the domain of speculation with a view to cover up an obvious difi-ciency in a legislation, it may legitimately discover such a policy, if it is clearly discernible on a fair reading of the relevant provisions of the Act. This Court, in Kathi Raning Rawat v. The State of Saurashtra('), found the clear policy of the Legislature on the basis of the prema-ble of the Act taken along with the surrounding circums-tances; in P. Balakotaish v .. Union of India('), on an examination of the Act read as a whole ; and in M / !.

Pannalal Binjraj v. Union of India('), from the pream-ble itself. This view was accepted in later decisions.

But it is neither possible nor advisable to lay down precise- ! y how a court should cull out such a policy from an Act in the absence of an express statutory declaration of. policy.

It would depend upon the provisions of each Act, includ-ing the preamble. But what can be posited is that the policy must appear clearly either expressly or by necessary implication from the provisions of the statute itself.

Now, does the Act provide any real guide to the Mu-nicipal Board to exercise its discretion under s. 128(1) of the Act? The Act is a consolidating and amending Act relating to muncipalities in the State of Uttar Pradesh.

Section 7 of the Act narrates the duties of a municipal hoard. It directs the municipal hoard to discharge duties connected inter alia with sanitation, drainage, laying of roads, schools, health, water supply, hospitals, maternity 1963 centres and similar others. Section 8 enables a municipal

board to provide, in its discretion, special amenities and Gopal Narain undertake other duties mentioned therein, which involve

v.

State of heavy expenditure.

Uttar Pradesh The duties cannot be discharged and the discretionary

and Anr. functions cannot be performed unless the municipality

f. has power to collect money by way of taxes. Section 128 Subba Rao, of the Act confers such a power on the Municipal Board.

It says that the Municipal Board may impose in the whole or any part of the municipality the taxes mention-ed therein. A fair reading of these three provisions makes it clear _that the amounts cqllected by the Municipal Board by way of taxes are mainly intended to enable the Board to discharge its duties in the municipal area or a part of the municipal area, as the case may be. It is contended that while no doubt a combined reading of the said provisions may indicate the purpose of taxation, it does not disclose any policy how and under what ·circumstances the Municipal Board can select a part of the municipal area for the imposition of a tax or taxes. We do not agree. Sections 7 and 8 enumerate the obli-gatory duties and discretionary functions of a municipa-lity. These duties and functions need not necessarily be discharged or performed in the entire area of the municipality at once. ·They may have to be introduced gradually, starting from one part of the area in the mu-nicipality with a view to cover the entire area in due course. It may also be that the amenities required in one part of the municipal area may be different from those required in another part of the municipality. It ·may also be that a part of the area, because of the na-ture of the soil, distance from the well-developed part of the city or for historical reasons, calls for a larger in-vestment for development compared to other parts of the municipality. If so much is conceded, that is, differ-ent parts of a municipality may require special treatment in the matter of provisions of amenities, it would be rea-sonable to collate the power of taxation in a part of a municipality with such separate treatment. While the 'former two sections, by necessary implication, enable a municipality to provide special amenities in a part of the municipality, the latter. section empowers it to impose tax-es in that part. If so understood the legislative gui-1963 dance is apparent from the said three 11rovisions ; that is to say, a municipality can impose a tax in a part of a Go pal Narain v. city, if that part, because of its peculiar situation or other-State of wise, has to be provided with special amenities throwing U ttar Pradesh a heavy financial burden on the municipality. and Anr.

The next question is, whether the said policy offends Subba Rao Art. 14 of the Constitution. It is said that all the citizens of a city would directly or indirectly partake in the ameni-ties provided in any part of the city and, therefore, the classification underlying the policy has no reasonable nexus with the object sought to be achieved. It is argu-ed that amenities, such as good roads, extensive parks, electrification, water supply etc., provided in one part of the city could equally be taken advantage of by residents of other parts of the city and, therefore, the expenditure on such amenities should be met from the general reve-nues. It may be so ; but the indirect benefit cannot be equated with the direct benefit conferred upon a part of the city treated as a separate unit for the purpose of taxation. This Court, in K handige Sham Bhat v. Agri-cultural Income-tax Officer, Kasaragod ('), in dealing with a law of taxation in the context of the doctrine of classi-fication observed :

"Taxation law is not an exception to this doc-trine : vidc Purslzottam Govindji v. B. M. Desai(') and K. T. Moopol Nair v. State of Kerala(' 0 But in ).

the application of the principles, the courts, in view of the inherent complexity of fiscal adjustment of diverse elements, permit a larger discretion to the Legislature in the matter of classification, so long it adheres to the fundamental principles underlying the said doctrine. The power of the Legislature to classify is of "wide range and flexibility" so that it can adjust its system of taxation in all proper and reasonable ways."

Looking at the policy disclosed by ss. 7 and 8 and s. 128 of the Act an<l applying the liberal view a law of taxation receives in the application of the doctrine of 1963 classification, it is not possible to say that the policy so

disclosed infringes-the rule of equality. This Court in Gopal Narain more than one decision held that equality clause does not

v. forbid geographical classification, provided the difference State of Uttar Pradesh between the geographical units has a reasonable relation

and Anr. to the object sought to be achieved. This principle has

been applied to a taxation law in Khandige Sham Bhat's Subba Rao·./. Case('). In that case, this Court also accepted the

principle that the legislative power to classify is of wide range and flexibility so that it can adjust its system of taxation in all proper and reasonable ways. It is indica-ted in "Willis, Constitutional Lau/', at p. 590, that a State can make a territory within a city a unit for the purpose of taxation. So, the impugned section in permit-ting in the matter of taxation geographical classification, which has reasonable relation to the object of the sta-tute, namely, for providing special amenities for a parti-cular unit the peculiar circumstances whereof demand them, does not in any way impinge upon the equality clause.

The very question that we are now called upon to decide received the attention of a Full Bench of the Al-lahabad High Court in Bareilly Municipality v. Kundan Lal (2)_. The Full Bench, by a majority, held on a cons-truction of the provisions of the Act that the power vest-ed in the Board to select part of the municipality within which to levy a tax was not an arbitrary power but one which is controlled by the purpose which was intend-e? to be achieved by the Act itself. We agree with this view.

The next question is whether the notification issued by the Municipal Board imposing the said taxes in the area of the Civil Lines offends Art. 14 of the Constitution. It is clear from the affidavit filed on behalf of the Muni-cipal Board and the map annexed thereto that the area covered by the Civil Lines has been treated as a separate unit in . the matter of development from the year 1870. The Municipal Board acquired the land in that area, laid out roads, carved out good sized building plots, and pro-vided special amenities for the residents by way of broad roads, open and bigger plots for construction of houses, parks and gardens, special lighting arrangementi, 1963 foot-path with cement benches, water booths with water-man for giving water to the public and special sanitary Copa/ Narain arrangements ; whereas the old city area of Bareilly con-v. State of sisted of small plots of land with small houses there-Utt<r Pradesh on situated in congested localities with narrow lanes. The and Anr. Municipal Board imposed house tax in the Civil Lines area from as early as January 31, 1870 and, after the Act Subba Rao came into force, reimposed the impugned tax in ac-cordance with the provisions of the Act. In the case of scavenging tax, there appears to be different methods adopted in the two areas. In the Civil Lines area night-soil and rubbish are collected by the Municipal Board from each bungalow, while in the City area they are col-lected from one common place in each ward. The for-mer certainly involves higher expenditure than the latter.

l t will, therefore be seen that for about 90 years the Civil Lines area has bc-&n treated as a separate geographi-cal unit for the purpose of taxation, having regard to his-torical reasons and the extra amenities provided for the residents of that locality and the heavy expenditure in-curred by the Municipal Board in doing so. The differ-ences between the old city and the Civil Lines area are so pronounced in the matter of amenities that there is a reasonable relation between the taxes imposed and the geographical classification made for the purpose of taxa-tion. We, therefore, hold that the notification impming the said tues does not infringe Art. 14 of the Constitu-tion.

The next question is whether s. 131 ilf the Act viola-tes Art. H of the Constitution. Section 131 of the Act reads :

" ( i) When a board desires to impose a tax, it shall by special resolution frame proposals specifying- ( a) the tax, being one of the taxec, described in sub-

~ection ( 1) of section 128, which it desires to impose;

(b) the persons or class of persons to be made liable,

and the description of property or other taxable thing or circumstances in respect of which they are to be made liable, except where and in so far as any such class or description is already sufli-ciently defined under clause (a) or by this Act ; Glfllli (c) the amount or rate leviable from each such per-

maroin son or class of persons ; · w.

:iiraite. of \ d) any other matter referred to in section 153, which lllaa-J.IlmiJeih the State Government requires by rule to be spe-

amiJ .Anr. cified."

The argument is that this section enables the Board to impose a tax of any amount and against any persons or class of persons without giving any guide in regard to the fixation of rate of tax or the persons or class of per-sons liable to pay the tax. It is said that the said power conferred upon the Municipal Board is an unguid-ed and naked power. Section 131 does not confer any power on the Board to impose a tax. Section 128 confers such a power and that section with meticulous care enu-merates the subjects of taxation. Section 131 provides a machinery for imposing the said taxes. The said taxes cannot be imposed in vacuum. There, should be some ma-chinery for acsertaining the rate of taxation and the persons or the class of persons liable to pay the same. If s. 131 stood alone, there may be some justification for the co-ment, but if it is read along with s. 128, it posits a reasonable nexus between the tax in respect of a subject and the rate payable and the person or class of persons liable to pay the same. To illustrate : s. 128 empowers the Muni-cipal Board to. levy a tax on the annual value of a build-ing and to make a person, who should obviously be a person connected with the building, liable to pay the same. For deciding those questions a quasi-judicial procedure is prescribed under s. 131 and the succeeding sections of the Act. Under s. 131 the Municipal Board makes the proposals specifying the tax, the rate and the persons or the class of persons liable to pay the tax and such other details prescribed thereunder. The Board thereupon publishes ih the manner ·prescribed the said details. Under s. 132 any inhabitant of the municipality may within a fort-night from the publication of the said notification, submit his objections thereto. Thereupon the Board shall take any objection so submitted into consideration and pass orders thereon by special resolution. If the Board deci-des to modify its proposals, it shall publish the modified proposals and the modified proposals may also be objected to. After the final orders are made by the Board, it shall 1%3 submit the proposals along with the objections, if any, to the prescribed authority. Under s. 133 the prescribed Go pal Na rain v. authority shall then submit the proposals and the object-State of tions to the State Government, which will make the final I/! ttar Pradesh orders. When the proposals are sanctioned by the prescri-and Anr. bed authority, or the State Government, the State Govern-ment shall make rules having regard to the draft ru-iubba Rao/. les submitted by the Board ; when the rules are sanction-ed by the State Government, they will be sent to the Board and thereupon the Board by special resolution shall direct the imposition of the tax with effect from a date specified in the resolution. Thereafter the said resolu-tion will he notified by the State Government in the Gazette. It will be seen from the aforesaid provisions that the rate of tax to be levied and the persons or the class of persons liable to pay the same have a reasonable rela-tion to the subjects taxable under the Act. The said rate to be imposed and the persons or the class of persons liable to pay the same are ascertained by a quasi-judicial proce-dure after giving opportunity to the parties affected, subject to revision by the State Government. We cannot therefore, say that the power conferred upon the Muni-cipal Board is an arbitrary power offending Art. 14 of the Constitution.

The next question of learned counsel is that the said taxes were imposed in violation of the procedure prescri-bed by the Act. At the outset it may be noticed that the house tax was imposed with effect from January 31, 1870 and the latrine tax was imposed with effect from May 23, 1918 and the latter tax was replaced by scaveng-ing tax with effect from April 1, 1939. Though decades have passed by, no one has questioned till now the vali-dity of those taxes on the ground that the procedure was not strictly followed. There is a presumption, when a statutory authority makes an order, that it has followed the prescribed procedure. The said presumption is not in any way weakened by the long acquiescence in the im-position by the residents of the Civil Lines. Nonetheless no tax shall be levied or collected except in accordance with law. If it is not imposed in accordance with law, it would infringe the fundamental rights guaranteed un-1963 der Art. 19(1)(£) of the Constitution. While the long

period of time that lapses between the imposition of the Gop•I Narain tax and the attack on it may permit raising of certain

v.

State of presumptions where the evidence is lost by affiux of time, Uttar Pradesh it cannot exonerate the statutory authority if it imposes a

Nnd Anr. tax in derogation of the statutory provisions. We will,

therefore, proceed with the specific objections raised by the petitioner.

Sections 131 to 136 give the procedural steps to be followed for imposing a tax. We have already given a gist of those sections in a different context. Learned coun-sel for the petitioner contends that the Municipal Board violated the provisions of s. 131(1) of the Act inasmuch as, ( i) it did not give all the necessary details in the proposals made under s. 131(1) of the Act, and (ii) the Government did not make the ruks after the Act came into force in accordance with the procedure prescribed under s. 131 and the succeeding sections of the Act. In regard to the first objection, there is an allegation in the affidavit filed by the petitioner, but there is none in respect of the second objection. In a matter like this, we are not prepared to permit the petitioner to question the validity of the tax on the second ground in the absence of any specific allegation in regard to the same in the affidavit. There is a specific allegation in regard to the first ground, but it is denied in the counter-affidavit filed by the Municipal Board. On April 5, 1917, the Munici-pal Board passed the following special resolutious :

"Draft proposals under Section 128(1) (i) for re-vising the Government Notification No. 135 dated 13-1-1870 levying tax on the buildings and lands in the Civil Lines Station of the -Bareilly Municipality. Resolution : Resolved that Draft Proposals be noti-fied."

Ex faci~ this resolution shows that there were draft pro-posals ; those draft proposals are not before us and taey must have contained all the details required by the sec-tion. We reject this contention. We, therefore, hold that is has not been established that the impugned taxes have been imposed in violation of any of the provmons of s. 131 and other relevant sections of the

The last argument relates to the scavenging tax. 1963 Section 128(1)(xi) empowers the Municipal Board to im-pose a scavenging tax. Clause (xii) of that section may . Gopol_..., w. also be noticed. It reads : "a tax for the cleaning of StMe ·ti latrines and privies". The relevant notification imposing Uttin' ft I I the tax reads : anti Anr.

"It is hereby notified under sub-section (2) of f. Section 135 read with section 136 of the United Pro-Subba RMI, vinces Municipalities Act, 1916 (II of 1916) that the Municipal Board of Bareilly, in exercise of the powers conferred by section 128 ( 1) (xii) of the said Act, has imposed the following scavenging tax in the Bareil-ly Municipality published with notification No.

3298/XI-18 H, dated the 20th September 1933, in super- ~ession of notification No. 628/XI-18H, dated the 24th January, 1923, with effect from lst April 1939.

Description of the tax.

A tax for the removal of nightsoil and rubbi~h at the rate mentioned below to be realized from the oc-cupier or the owner of the buildings (bungalows) situated within the Civil Lines ward of the munici-pality."

* * * * * * In accordarice with the said notification, nightsoil and rubbish are collected by the Municipal Board from each bungalow in the Ci vii Lines area. The contention is that the Municipal Board had no power to impose a scaveng-ing tax under cl. (xii) of s. 128 ( 1) of the Act and, there-fore, the imposition of the tax is illegal. The Municipal Board says in iti, counter-affidavit that cl. (xii) mentioned in the notification is a mistake for cl. (xi). The question is whether the Municipal Board has power to impose scavenging tax. There must be some distinction between scavenging tax and a tax for cleaning of latrines and privies. Presumably cl. (xi) is more comprehensive than cl. (xii). In the counter-affidavit it is stated that night-soil and rubbish are collected by the Municipal Board from the bungalows in the Civil Lines. Though a part of that function is covered by cl. (xii), the combined function is covered by cl. (xi) of s. 128 of the Act. The question of the validity of the tax depends upon the existence of power to tax in respect of a subject. The

1963 . Municipal Board had certainly power to impose the sca-

venging tax. The mention of cl. (xii) in the notification Gopal Narain appears to be a mistake for cl. (xi) and that does not

v.

State of effect the power of the Municipal Board to impose the Uttar Pradesh tax. There are no merits in this contention either.

aftd Anr. In the result, the petition is dismissed with costs. Subba Rao, l· Petition dismissed.

1963 SMT. KAUSHALYA DEVI

September, 4 ti,

SHRI MOOL RAJ AND OTHERS

(P. B. GAJENDRAGADKAR, K. SuBBA RAo, K. N. WANCHoo,

N. RAJAGOPALA AYYANGAR AND ). R. MunHOLKAR, Jj.)

Practice-Application by accused for transfer-.-'! ffidavit by trying 1'fagistrate opposing application-Propriety.

Criminal proceedings \Vere started against the petitioner and three others on an complaint made by the first respondent alleging that the four accused persons had committed offences under s. 420 read with s. 120B of the lodian Penal Code. Originally the Magis-trate had dispensed with the personal appearance of the petitioner in court, but on application made by the complainant, the Magistrate n1ade an order directing the petitioner to be present in court in order to give an opportunity to the co1nplainant's witness to identi-fy her. Apprehending that this order would lead to her, prejudice, she made an application in the Supreme Court for transfer of the case to some other couft, on the grounds, inter alia, that the facts alleged by the complainant nlight perhaps constitute a civil dispute but the said facts had been deliberately twisted and a criminal complaint had been made to harass the petitioner. After the peti-tition was ad1nitted and interim stay granted to the petitioner pen-ding the hearing and final disposal of the main petition, an affidavit \Vas-filed on behalf of the Delhi Administration, by the Magistrate hi1n!:elf, opposipg the application and stating, inter alia, that the clause inde1nnifying the purchaser contained in the sale deed on which the petitioner relied on \Vould not absolve the peti-tioner from criminal liability. Thus it was clear that the depon-ent Magistrate had adopted the argument which might probably be urged by the complainant at the trial.