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Sanitary Inspector, Quilon Municipality Vs. Vararaju - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKerala High Court
Decided On
Case NumberCriminal Appeal No. 261 of 1958
Judge
Reported inAIR1960Ker81; 1960CriLJ348
ActsTravancore Public Health Act, 1121 - Sections 152
AppellantSanitary Inspector, Quilon Municipality
RespondentVararaju
Appellant Advocate Public Prosecutor,; T.K. Narayana Pillai and; D. Narayan
Respondent Advocate S. Narayanan Potti,; P. Karunakaran Nair and; N.K. Varke
DispositionAppeal allowed
Cases ReferredPublic Prosecutor v. Gopalkrishnan Pillai
Excerpt:
.....by section 152 of the act. notice was issued to the respondent under section 42 of the act to abate a nuisance, and was served on him, but he failed to comply with it. in that case, the health officer recommended prosecution of a party and the commissioner merely 'sanctioned' it......the complainant reported the respondent's non-compliance with the directions in the notice, to the health officer by his report ext. p-6 dated the 3rd june 1955. as directed by the health officer, a notice to show cause why the res-pondent should not be prosecuted was issued to him and was duly served. the health officer then passed an order 'prosecute' which is ext. p-3, and is dated the 11th june, 1355. the complaint was preferred pursuant to this.the two orders aforesaid, dated the 4th june and 11th june 1955 were passed on ext. p-6. it may he mentioned, that there had been a general authorisation ext. p-4, to the same complainant by the health officer, on the 28th june 1951, authorising him under section 152 of the act, to prefer complaints in respect of offences under the act. at.....
Judgment:

Velu Pillai, J.

1. On a complaint preferred by the Sanitary Ins-pector, Quilon Municipality, against the respondent, for an offence punishable under Section 147, Sub- section 1(C) read with Section 42 of the Travancore Public Health Act 1121, hereinafter referred to as the Act, for the respondent's failure to comply with the directions lawfully given to him for abating a nuisance, the Additional Second Class Magistrate, Quilon, after deciding the relevant questions of fact in favour of the complainant, pronounced judgment dismissing the complaint, and acquitting the respondent, on the ground that the complaint was not supported by an express authorisation as prescribed by Section 152 of the Act. The State, represented by the complainant, has preferred this appeal against the acquittal of the respondent.

2. The only point for decision in the appeal is, whether the complainant had the requisite authority under Section 152 of the Act. Notice was issued to the respondent under Section 42 of the Act to abate a nuisance, and was served on him, but he failed to comply with it. The complainant reported the respondent's non-compliance with the directions in the notice, to the Health Officer by his report Ext. P-6 dated the 3rd June 1955. As directed by the Health Officer, a notice to show cause why the res-pondent should not be prosecuted was issued to him and was duly served. The Health Officer then passed an order 'prosecute' which is Ext. P-3, and is dated the 11th June, 1355. The complaint was preferred pursuant to this.

The two orders aforesaid, dated the 4th June and 11th June 1955 were passed on Ext. P-6. It may he mentioned, that there had been a general authorisation Ext. P-4, to the same complainant by the Health Officer, on the 28th June 1951, authorising him under Section 152 of the Act, to prefer complaints in respect of offences under the Act. At the trial P. W. 4, the Health Officer, testified, that Ext. P-3 was an authorisation to the complainant to lodge this prosecution. The learned Magistrate holding that Ext. P-4 was only a general authorisation to the complainant to prefer complaints in respect of offences under the Act, seemed to think that Ext. P-3 was only an order to prosecute and not an express authorisation to the complainant. We are of the opinion, that the view taken by the learned Magistrate is unsound, and cannot be supported.

3. There can be no doubt, that an express authorisation to the complainant to prefer a complaint, is an essential requirement under Section 152 of the Act. In this view, Ext. P-4 being only a general authorisation, is inadequate by itself. The learned Magistrate, in our opinion, misconstrued and misunderstood the scope and effect of Ext. P-3 order to prosecute when it was passed upon Ext. P-6 report of the complainant. If was an authorisation to him, to prosecute the respondent, for non-com-pliance with the directions in the notice issued to him, upon a report thereof, being made by the complainant, who had already clothed himself with a general authority to prefer complaints. Ext. P-3 coming on the top of Ext. P-4, and having been passed upon the reports Ext. P-6, is not lacking in any of the requirements prescribed by Section 152 of the Act. There was, therefore a valid authorisation to the complainant to lodge the complaint.

4. We find ourselves in agreement with the view taken by the Madras High Court in Public Prosecutor v. Gopalkrishnan Pillai, AIR 1942 Mad 347 (2), on a similar question which arose under Section 347 of the Madras District Municipalities Act 1920 which on the present issue, is in the same terms as Section 152 of the Act. In that case, the Health Officer recommended prosecution of a party and the Commissioner merely 'sanctioned' it. The question was whether the sanction, which implied only a passive attitude, as distinguished from an authorisation which implied an active attitude, was sufficient. Horwill, J. decided that looking at the act of the Commissioner rather than at the actual word used, there was no room for doubt, that the authorisation required by Section 347, was in fact given. We think, the present is a stronger case than what was decided by the Madras High Court, the relevant word being 'Prosecute' and not 'Sanctioned'. We, therefore, hold that Ext. P-3 was an express authorisation within the meaning of Section 152 of the Act to the complainant to launch this prosecution.

5. The other findings being in favour of the complainant, we hold that the acquittal of the respondent is not proper and cannot be justified. Setting aside the order of acquittal passed by the learned Magistrate, the respondent is hereby convicted under Section 147, Sub-section 1(c) read with Section 42 of the Act, and sentenced to pay a fine of Rs. 25 and in default of such payment, to undergo simple imprisonment for one month. The appeal is thus allowed.


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