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The Kurnool Municipality Vs. the Civic Association and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAndhra Pradesh High Court
Decided On
Judge
Reported in1973CriLJ1227
AppellantThe Kurnool Municipality
RespondentThe Civic Association and anr.
Excerpt:
.....contain the qualifying words 'unless there is any thing repugnant in the subject or context' those qualifying words are always understood. barring such cases mentioned above it seems corporations like natural persons can be indictable for criminal offence......respondent-association filed a complaint against the municipality under section 290 of the indian penal code for punishing it for causing public nuisance by systematically neglecting its duty to maintain cleanliness in kurnool town. the case is still pending. during its pendency, the municipality filed a petition raising a preliminary objection for taking cognizance of the offence without the necessary sanction of the government as contemplated under section 375 of the andhra pradesh municipalities act (hereinafter referred to as the 'municipalities act'). the petition was resisted by the civic association, the complainant, alleging that the complaint is not laid against any officer of the municipality in which case only sanction of the government as required under section 375 of the.....
Judgment:
ORDER

Ramachandra Raju, J.

1. The petitioner is the Kurnool Municipality. The 1st Respondent is the Civic Association, Kurnool. The 1st respondent-association filed a complaint against the Municipality under Section 290 of the Indian Penal Code for punishing it for causing public nuisance by systematically neglecting its duty to maintain cleanliness in Kurnool town. The case is still pending. During its pendency, the Municipality filed a petition raising a preliminary objection for taking cognizance of the offence without the necessary sanction of the Government as contemplated under Section 375 of the Andhra Pradesh Municipalities Act (hereinafter referred to as the 'Municipalities Act'). The petition was resisted by the Civic Association, the complainant, alleging that the complaint is not laid against any officer of the Municipality in which case only sanction of the Government as required under Section 375 of the Municipalities Act is necessary and that provision has no application to the present case as the complaint is laid against the Municipality itself and not against its officers. The Lower Court, viz.. Judicial First Class Magistrate. Kurnool. however, without really going to the question raised whether Section 375 of the Municipalities Act is applicable to the facts of the case or not dismissed the petition taking the view that having taken cognizance of the offence once rightly or wrongly it is not within the competence of the same Court to pass an order of dismissal of the complaint on that ground and so far as that Court is concerned the trial has to be proceeded with. It is against that order passed by the Magistrate this revision case has been filed.

2. Sri J. Jayarama Naidu the learned Counsel for the petitioner-Municipality has argued two points. One is the Municipality, being not a natural person, itself cannot be made liable for any offence even if the facts alleged are true and therefore the proceedings started against the Municipality themselves have to be quashed and secondly, even otherwise the sanction of the Government not having been obtained as provided under Section 375 of the Municipalities Act the lower court erred in taking cognizance of the offence and no cognizance should have been taken by it without such sanction.

3. Taking the first point first, in the treatise by Russel on Crime (12th Edition at pages 96 and 97) the law with regard to criminal responsibility of corporations has been stated thus:

At common law a corporation aggregate has been regarded as in the nature of things incapable of treason, felonies or misdemeanours involving personal violence, such as riots or assaults or of perjury, or it would seem offences for which the only penalty is imprisonment or corporal punishment. The mpdern tendency of the Courts. however, has been towards widening the scope within which criminal proceedings can be brought against institutions which have become so prominent a feature of everyday affairs, and the point is being reached where what is called for is a comprehensive statement of principles formulated to meet the needs of modern life in granting the fullest possible protection of criminal law to persons exposed to the action of the many powerful associations which surround them. At common law, corporations are now indictable for nuisance and breaches of public duty, whether existing by the common law or created by statute, and whether the breach of duty is by misfeasance or non-feasance. Corporations are often indicted for non-repair or illegal obstruction of highways, and it would seem that a corporation aggregate is indictable for defamatory libel.

4. In Halsbury's Laws of England (Third Edition Volume 10 and page 281 under Section 521) the law has been stated thus:

A corporation aggregate cannot be guilty of any offences (such as bigamy or perjury) which by their very nature can only be committed by natural persons; nor can a corporation aggregate be found guilty of a crime where the only punishment is death or imprisonment.

Apart from these exceptions, a corporation may be guilty both of statutory and of common law offences, even though the latter involve mens rea; and in the construction of any enactments relating to an offence punishable on indictment or on summary conviction, the expression 'person' includes a body corporate unless the contrary intention appears, A corporation can only commit crimes by or through its agents; some of whom must themselves be responsible for the crime. It is a question of fact in each particular case whether the criminal act of its agent is the act of the corporation, and whether the agent's state of mind, intention, knowledge or belief can be imputed to the corporation. It depends on the nature of the charge, the position of the officer or agent relative to the corporation and the other relevant facts and circumstances of the case.

Section 290 of the Indian Penal Code reads thus:

Whoever commits' a public nuisance in any case not otherwise punishable bv this Code, shell be punished with fine which may extend to two hundred rupees.

5. 'Whoever commits' means any person who commits. The term 'person' is defined under Section 11 of the Indian Penal Code, according to which the word 'person' includes any company 'or association or body of persons, whether incorporated or not.

6. Therefore associations or corporations other than natural persons can also be indictable for offences under the Indian Penal Code. But despite the generality of the definition of 'person' under Section U of the Indian Penal Code, with regard to offences such as bigamy or perjury or offences involving personal violence which by their very nature can only be committed by natural persons or imprisonment, it may not be possible to say that corporations can be indictable. It is a well settled principle of judicial interpretation that the inclusive meaning of a term is not to be necessarily and indiscriminately applied to the word and though the inclusive definition does not contain the qualifying words 'unless there is any thing repugnant in the subject or context' those qualifying words are always understood. Barring such cases mentioned above it seems corporations like natural persons can be indictable for criminal offence. So far as the offence Section 290 of the Indian Penal Code, with which we are concerned, it is punishable only with a fine. Therefore, on that account there is no difficulty for punishing a corporation as provided under Section 290 of the Indian Penal Code and public nuisance is not an offence where it can be said that by its nature it can only be committed by .a natural person. It is true that corporate bodies necessarily act by or through their agents. There is no reason to exempt them from liability for criminal acts or omissions committed by their agents or servants while purporting to act for or on behalf of the corporate bodies. In some cases the agents themselves may be personally responsible for the crime. It is a question of fact in each particular case whether the criminal act of the agent is the act of the corporation. In each case it depends on the nature of the charge and other relevant facts and circumstances.

7. Therefore, there is no substance in the first point raised by the learned Counsel for the petitione'r that the Municipality, being not a natural person cannot be made liable for any offence.

8. Coming to the second point, Section 375 of the Municipalities Act reads thus:

When the Chairman, any member of the executive committee, any councillor, the Secretary or municipal health officer or any other officer is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no court shall take cognizance of such offence except with the previous sanction of the Government.

9. From a reading of the above provision, it is clear that it is intended to protect the Chairman and membecs of the executive committees councillors and officers of the Municipalities from being harassed unnecessarily alleging commission of offences while acting or purporting to act in discharge of their official duties. The section does not in terms refer to prosecutions against municipalities as such. Therefore, it does not appear that Section 375 of the Municipalities Act covers prosecutions against the municipalities also. In the decision The Empress v. Municipal Corpn. of the Town of Calcutta, (1878) ILR 3 Cal 758 the Calcutta High Court while construing Section 39 of the Presidency Magistrates' Act took a similar view. That section provided that no public servant who is not removable from his office without sanction of Government shall be prosecuted for any act purporting to be done by him in the discharge of his duty without the previous sanction of Government, A question arose whether the Municipal Corporation of the town of Calcutta is a public servant within the meaning of that section so that sanction of the Government was necessary to prosecute the same. The Court held that the Municipal Corporation is not a public servant within the meaning of that provision and may therefore be prosecuted under the Indian Penal Code without the previous sanction of the Government as required by that section.

10. I do not think Section 375 applies to the Municipalities as such and to prosecute the same the previous sanction of the Government is necessary as provided therein.

11. In the result, there are no merits in this Criminal Revision Case and accordingly it is dismissed.


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