1. These are references from the Sessions Judge of Ahmedabad in fifteen cases in which the Additional Stipendiary First Class Magisstrate, Ahmedabad, convicted one C.C. Banker, said to be the Secretary of the New Manekchowk Mill at Ahmedabad, of offences under Sub-section 159 and 160 of the Bombay Municipal Boroughs Act (Bom. XVIII of 1925). In nine cases the prosecution was under Section 159 which renders punishable the act of causing or allowing the water of any sink or sewer or any other liquid or other matter which is or which is likely to become offensive, from any building or land under the control of the accused, to run, drain, or be thrown or put upon any street or open space. In the other six cases the charge was under Section 160 which makes it an offence for the owner or occupier of any building or land to keep or allow to be kept for more than twenty-four hours, or otherwise than in some proper receptacle, any dirt, dung, bones, ashes, night-soil, etc., in or upon such building or land.
2. It appears that at the suggestion of the defence pleader the learned Magistrate recorded evidence in one of the cases only, which is the subject of the first of these criminal references, No. 98. Having convicted and imposed sentence in that case the Magistrate then passed orders in the other cases without recording any further evidence. As the learned Sessions Judge says, this procedure is not contemplated by the Criminal Procedure Code and is clearly illegal. We had to deal with the same kind of illegality in another case Emperor v. Panubhai Laljibhai (1938) Cr. Rev. No. 267 of 1938, decided by Broomfield and Macklin, JJ. on October 6, 1938 (Unrep.) from the Ahmedabad District not very long ago, and as it appears that the Ahmedabad Magistrates are under a serious misapprehension as to their powers in this respect, it is desirable to repeat what was said in the judgment in that case, which applies exactly to the present case:--
We agree with the learned Sessions Judge of Ahmedabad that when you have a series of complaints of an offence alleged to have been committed on fourteen different occasions it is not permissible to do as the Magistrate in this case did viz., to hear the evidence and write a judgment in one of the cases and then proceed to pass merely consequential orders in the other cases. Criminal cases cannot like civil suits be consolidated and tried together on the same evidence except within the limits as to the joinder of charges laid down in the Criminal Procedure Code. It would have been permissible for the Magistrate to try the charges in groups of three, and I may say incidentally that I should have thought it quite sufficient for all practical purposes if the Municipality had restricted themselves to lodging three or at the most six complaints. However that may be, the Magistrate's procedure is plainly illegal and the illegality is not cured by the fact that the accused's pleader appears to have consented to the procedure adopted.
3. In the present case it appears that the defence pleader suggested the adoption of this procedure. That makes no difference. It is plain therefore that the conviction of the accused in all the cases in which no evidence was recorded, that is, the cases which are the subject of references Nos. 99 to 112 of 1940, must be set aside and the fines and process fees ordered to be paid must be refunded to the accused.
4. The learned Sessions Judge has also recommended that the conviction in the first case (No. 98), in which evidence was recorded, should also be set aside. He points out quite correctly that under Section 159 of the Bombay Municipal Boroughs Act it has got to be proved, firstly, that the accused is a person who has the building or land under his control, secondly, that he allowed the water to run upon any street, land or space, and, thirdly, that the water was or was likely to become offensive. He says in his letter of reference that there is no finding of the Magistrate on any of these points. The accused denied that he was the Secretary of the Mill; evidence was given to show that he was; the Magistrate held that he was; and on the strength of that finding, according to the learned Sessions Judge, he convicted the accused.
5. Mr. J.C. Shah, who appears for the Municipality which was the complainant in these cases, disputes the statement of the learned Sessions Judge that there is no finding of the Magistrate on points 2 and 3. He says that the first sentence of the order shows that the accused was charged with having discharged waste water of the Bleaching and Dyeing Departments on the street land and thus committed an offence punishable under Section 159, and that further on in the judgment the Magistrate said:--
Here the offence has been committed as supported by the prosecution evidence.
6. It is by no means clear, I think, that the particulars of the charge have been stated sufficiently clearly to make it to appear that the learned Magistrate had applied his mind to the necessary ingredients of the offence. ' Waste water' would not necessarily be offensive or likely to become offensive, which is what the section requires, and the Magistrate's statement that the prosecution evidence justifies a conclusion that the offence had been committed hardly enables one to say that the necessary evidence as to the offensive character of the waste water had been produced. However, it is not necessary to deal with the matter on points 2 and 3.
7. It is quite clear from the learned Magistrate's judgment that he did not apply his mind to the question whether the accused was a person who had the building or land of the mill under his control. Mr. Shah has not suggested that there was any evidence produced to show that he had such control. He says that the secretary is an officer of the company and that the Magistrate may have assumed that as secretary he was liable to be convicted. It may well be that the Magistrate did make this assumption, but if he did, it was a wrong assumption. It was recently pointed out by this Court in Emperor v. Jagannath P. Thakar (1940) Crim. Ref. No. 71 of 1940, decided by Beaumont C.J., on July 30, 1940. (Unrep.) that the secretary of a mill was not as such liable to be convicted under Section 159 as being in control of the premises. The learned Chief Justice said in that case:--
Prima facie, the Secretary of a Mill would be a person to attend to the office and clerical work, but he would certainly not be a person to control the working of the mill or to see in what manner the waste water is to be discharged. That would be for the Manager. If the Secretary in the case of this Mill has control of the Mill, there ought to be evidence to that effect.
8. In the present case also there is no presumption that the accused as secretary was in control of the premises, and, as far as we can see, no evidence to that effect was produced. In this case also therefore we agree with the learned Sessions Judge that the conviction cannot stand. In the case which is the subject of reference No. 98 of 1940 the conviction is set aside and the fine and process fees must be refunded to the accused.