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Lachman Prasad Vs. Emperor - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1935All905
AppellantLachman Prasad
RespondentEmperor
Excerpt:
.....141(2), cantonments act, is clearly illegal because the facts of this case disclose no offence under that sub-section. there was clearly a failure to comply with the notice served under section 141(1) of the act, and that being so, the applicant was by reason of that sub-section read with section 268 of the act, liable to a fine not exceeding rs. 200 and further, section 268 provides that in the case of a continuing failure to comply with the notice the applicant was liable to an additional fine which might extend to rs. 20 for every day after the first during which he persisted in such failure. 20 for each day in which he persisted in the failure. however he was prosecuted for the same failure under another sub-section, viz. 7. it has been urged by the prosecution that where a man has..........premises within the cantonment area. on 18th september 1934 a notice was served upon him by the executive officer of the cantonment authority requiring him to remove certain filth which had accumulated on his premises and to render the same clean and sanitary within 24 hours of the service of the notice. the applicant did nothing and appears to have informed the cantonment authority that it was impossible for him to remove all the rubbish which had accumulated on the premises within 24 hours. the cantonment authority gave him a short extension of time, but nothing was done within that period.2. in due course proceedings were commenced against the applicant for breaches of the sections of the cantonments act, previously mentioned. he was convicted of an offence under section 141(1).....
Judgment:
ORDER

Harries, J.

1. These are two applications for revision of an order of the learned Sessions Judge of the Shahjahanpur District confirming orders of a learned Magistrate convicting the applicant of an offence under Section 141(1) read with Section 268, Cantonments Act, and of an offence under Section 141(2) of the same Act. The applicant was the occupier of certain premises within the cantonment area. On 18th September 1934 a notice was served upon him by the Executive Officer of the Cantonment authority requiring him to remove certain filth which had accumulated on his premises and to render the same clean and sanitary within 24 hours of the service of the notice. The applicant did nothing and appears to have informed the Cantonment Authority that it was impossible for him to remove all the rubbish which had accumulated on the premises within 24 hours. The Cantonment authority gave him a short extension of time, but nothing was done within that period.

2. In due course proceedings were commenced against the applicant for breaches of the sections of the Cantonments Act, previously mentioned. He was convicted of an offence under Section 141(1) read with Section 268, Cantonments Act, and fined a sum of Rs. 10. He was further convicted of an offence under Section 141(2), Cantonments Act, and fined Rs. 20. Upon an application to the learned Sessions Judge of the Shahjahanpur District, for revision of these orders the learned Sessions Judge confirmed the convictions and sentences imposed. It is now urged that the convictions in these cases must be set aside by reason of non-compliance with the terms of Section 266, Cantonments Act. That section provides:

Save as otherwise expressly provided in this Act, no Court shall proceed to the trial of any offence made punishable by or under this Act, other than an offence specified in Schedule 4, except on the complaint of, or upon information received from the Cantonment Authority concerned or a person authorised by the Cantonment Authority by a general or special order in this behalf.

3. Offences under Section 141(1) read with Section 268, Cantonments Act, and offences under Section 141(2), Cantonments Act, are not specified in Schedule 4 of the Act, and therefore no Court can proceed with the trial of any of these offences except on the complaint of or upon information received from the Cantonment Authority concerned or a person authorised by such authority by a general or special order in that behalf. In the present case there is no evidence whatsoever to show how the proceedings were commenced. There is upon the record a letter addressed to the Sub-divisional Magistrate, Shahjahanpur, purporting to be signed by the Executive Officer of the Cantonment Authority. No evidence was called to prove this letter and the production of it proves nothing at all. It may or may not be signed by the Executive Officer, but there was no evidence to prove his signature.

4. This letter is an application in the first person by the Executive Officer, but on the other hand, it is signed by him for the. Cantonment Authority. Assuming the latter to be proved, I am of opinion that the letter is a personal application by the Executive Officer for the prosecution of the applicant and not an application by the Cantonment Authority. If the letter is a personal application for the prosecution of the applicant, then it should have been shown that the Executive Officer was authorized by the Cantonment Authority by a general or special order to act on its behalf in such a proceeding. No such evidence was produced before the Court. Certain documents were put intending to show that this prosecution was instituted at the express instructions of the Cantonment Authority. There is a document on the record addressed to the Cantonment Authority mentioning that the applicant had failed to comply with the notice served upon him and suggesting a prosecution. Who wrote this document does not appear and there is no signature upon it. Above the writing upon this document appear the words 'Prosecute. A.G. Woodhouse', but there is no evidence upon the record to show who Mr. Woodhouse is. He may or may not be the Cantonment Authority, though I am informed that he probably is the Cantonment Authority. No attempt of any kind was made to prove this document or the signature of Mr. Woodhouse or indeed to show that Mr. Woodhouse was in any way connected with the Cantonment Authority. It has been urged that this document shows an express order by the Cantonment Authority to the Executive Officer to prosecute, but with this view, I cannot agree. There is no evidence to show that the Executive Officer sent the letter to Mr. Woodhouse or that Mr. Woodhouse instructed 'him to prosecute. The words on the letter are 'Prosecute. Sd/- A.G. Woodhouse' and as far as the document is concerned it might have been addressed to anyone. These documents, had they been proved properly, would undoubtedly have established somebody's authority to prosecute or might have established that the complaint was made on the authority not of an officer, but of the Cantonment Authority itself. However the prosecution saw fit to tender no evidence to prove any of these essential facts beyond putting in documents which, as they did not prove themselves, amounted to no evidence whatsoever. Courts must remember that putting in 'a document which purports to be written by X and addressed to Y proves nothing whatsoever until the writer of that document is palled or somebody who can identify his handwriting. Certain documents by reason of their nature prove themselves, but these documents required proof and no proof of any kind was forthcoming.

5. In the result therefore I am bound to hold that the terms of Section 266, Cantonments Act, were not complied with and it was not proved that the complaint or report was made in the manner required by the Act. In such circumstances the Court is prohibited by the express terms of the section from proceeding with the trial and as it did proceed its orders were clearly invalid. On this ground the two convictions must be set aside.

6. It has been further contended that the conviction under Section 141(2), Cantonments Act, is clearly illegal because the facts of this case disclose no offence under that sub-section. There was clearly a failure to comply with the notice served under Section 141(1) of the Act, and that being so, the applicant was by reason of that sub-section read with Section 268 of the Act, liable to a fine not exceeding Rs. 200 and further, Section 268 provides that in the case of a continuing failure to comply with the notice the applicant was liable to an additional fine which might extend to Rs. 20 for every day after the first during which he persisted in such failure. In this case, some six days after the service of the notice it was found that nothing had been done and that being the case, the applicant could have been fined under Section 141(1) read with Section 268, Cantonments Act, a sum not exceeding Rs. 200 together with a sum not exceeding Rs. 20 for each day in which he persisted in the failure. However he was prosecuted for the same failure under another sub-section, viz., Section 141(2), Cantonments Act. That sub-section reads:

If, within three months from the date of the service of a notice under Sub-section (1), any building or land in respect of which the notice was issued is again in a filthy or in sanitary state, the owner, lessee or occupier, as the case may be, shall be punishable with fine which may extend to two hundred rupees.

7. It has been urged by the prosecution that where a man has failed to comply with a notice within 24 hours he commits one offence and then immediately afterwards commits a second offence under Section 141(2) because his land is found within three months of the date of the notice again in a filthy condition. If that be the true construction a person may commit an innumerable series of offences under this sub-section between the expiry of 24 hours of the notice and of three months of the notice. In my view that is not the construction which should be placed upon this section. It is to be observed that the word 'again' is used in the sub-section and the use of that word suggests that the offence contemplated in Sub-section 2 is a recurring and not a continuing offence. In other words, the legislature contemplated the service of a notice upon a person and eventually a cleaning up of the premises with or without an offence committed under Section 141(1) read with Section 268, Cantonments Act. The legislature then provided that if within three months of the service of the original notice the premises were again found to be filthy proceedings could be commenced at once without a fresh notice. After the expiry of three months fresh notices would be required under Section 141(1) of the Act. In my Judgment this is the only fair construction to put upon the section and that being so, the present applicant could not have been convicted of an offence under Section 141(2) of the Act, even if a proper complaint or report upon which the summons was based had been proved.

8. In the result therefore I allow these two applications, set aside the convictions and sentences and direct that if the fines or any part of them have been paid, they must be refunded.


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