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State Vs. Bai Diwaliben Nagindas - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in(1961)2GLR314
AppellantState
RespondentBai Diwaliben Nagindas
Excerpt:
- - 5. from the facts of this case it is clear that the letters of vasantlal were sent to the municipality on the 3rd 4 and 10th november 1958; while actually the prosecution was launched on 13th november 1959. so it is well outside the period of limitation prescribed by the proviso to sub-section (1) of section 200 of the act......this act or byelaws framed thereunder shall be instituted except within six months next after the date of the commission of the offence or if such date is not known or the offence is a continuing one within six months next after the commission or discovery of such offence.4. it is the case of the municipality that in this case the date of the commission of the offence was not known to them and that they have filed the prosecution within six months next after the discovery of this offence as required by the above proviso to section 200. the municipality say that they discovered this offence after the application made by one vasantlal chunilal on 6th june 1959 and a subsequent application made by the same gentleman on 11th august 1959 and after their building superintendent one balkrishna.....
Judgment:

R.B. Mehta, J.

1. This is a reference made by the Extra Additional Sessions Judge, Surat, recommending quashing of an order of conviction and sentence passed by the learned Special Judicial Magistrate, First Class (Municipality), by which the learned Magistrate found the accused guilty under Section 123(7) of the Bombay Municipal Boroughs Act, 1925, and sentenced her to pay a fine of Rs. 10/-, in default to suffer S.I. for a week.

2. The facts of this case briefly are that the accused Bai Diwali Nagindas had applied to the local Municipality for permission to construct a flush latrine on 27th August 1958 in her property bearing No. 4/2773, in Ward No. 4, situated at Begumpura, Vania Sheri, in the city of Surat. She was granted permission by the Municipality to construct the same according to the plan submitted by her. The case of the Municipality against the accused is that she constructed a flush latrine not in the survey number in regard to which the permission was granted but in a different property bearing No. 4/2772, which was contrary to the permission granted to her by the Municipal Authorities and that consequently she was guilty of an offence under Section 123(7) of the Bombay Municipal Boroughs Act, 1925. This subsection comes into operation where there is a construction in contravention of the permission given by the Municipality. Consequently, a complaint was filed on behalf of the Municipality on 13th November 1959, after obtaining the permission of the Chief Officer of the Surat Borough Municipality in the Court mentioned above. The learned Magistrate accepted the prosecution case and convicted and sentenced the accused as stated above. Against that decision, a revision application was presented to the learned Extra Additional Sessions Judge Sural who in his reference has expressed the view that the prosecution in this case was barred by limitation under Section 200 of the said Act.

3. The only point that arises in this reference is whether the prosecution is barred by limitation under Section 200 of the said Act Section 200 provides as follows:

(1) The standing committee and subject to the provisions of subsection (3) the Chief Officer may direct any prosecution for any public nuisance whatever and may order proceedings to be taken for the recovery of any penalties and for the punishment of any persons offending against the provisions of this Act or of any rule or byelaw thereunder and may order the expenses of such prosecutions or other proceedings to be paid out of the municipal fund:

Provided that no prosecution for an offence under this Act or byelaws framed thereunder shall be instituted except within six months next after the date of the commission of the offence or if such date is not known or the offence is a continuing one within six months next after the commission or discovery of such offence.

4. It is the case of the Municipality that in this case the date of the commission of the offence was not known to them and that they have filed the prosecution within six months next after the discovery of this offence as required by the above proviso to Section 200. The Municipality say that they discovered this offence after the application made by one Vasantlal Chunilal on 6th June 1959 and a subsequent application made by the same gentleman on 11th August 1959 and after their Building Superintendent one Balkrishna Dahyabhai had made his report on the same on 15th September 1959 The complaint was filed on 13th November 1959. According to the Municipality limitation runs from the date their Inspector made the report of the contravention having taken place. The date of the report in this case is 15th September 1959. According to the Municipality therefore the prosecution is in time. It is the case of the accused that said Vasantlal had sent earlier intimation about the construction of this very latrine to the Municipality on 3rd 4 and 10th November 1958. It is not disputed that these letters dated 3rd 4 and 10th November 1958 were sent to the Municipality by Vasantlal giving intimation about the construction of this latrine. The argument advanced by the Municipality however is that as they did not know about the construction of the latrine as to when in fact it was constructed the limitation of six months is to run in this case from the time when they discovered the construction of the latrine. It is argued on behalf of the Municipality by its learned Advocate Mr. Vakil that the Municipality can be said to have discovered the offence after the Municipality receives the information and thereafter the Municipality sends its Inspector and when thereafter the Inspector makes his report. In other words according to the argument advanced on behalf of the Municipality the Municipality can be said to have discovered the offence only when its Inspector makes a report in the matter that there is a contravention. It is difficult for me to accept this interpretation of the word discovery used in the proviso to Sub-section (1) of Section 200 of the Act. The statute says that the prosecution is to be launched within six months from the date of the offence and in a case where the date of the commission of the offence is not known the period of limitation is to start after the date of the discovery of such an offence. To my mind the word discovery has been used in its ordinary dictionary meaning which as stated in the Concise Oxford Dictionary is finding out or making known. In other words at the stage where the Municipality finds out or comes to know about the commission of the offence from whatever source it may be said thai the Municipality has discovered that the offence has been committed. It is not necessary for the discovery to fall within the statute to say that the discovery is only when after the information in that regard is received by the Municipality it should further make inquiries in the matter and that only after the inquiry and the consequent report of its officer in that regard is received by it that at the date of the report it can be said to have discovered the commission of the offence. To my mind the language of the relevant proviso is clear and it is not possible to accept the inter-partition which is put forward on behalf of the Municipality. It one takes the interpretation given by the Municipality literally that would lead to very undesirable results. In the first place if that interpretation is accepted that would mean that the Municipality after receiving the information may at its own leisure send its Inspector who may at his own leisure make inquiry and also at his own leisure make the report and in this way much of the time may unnecessarily be taken up in these proceedings. The object of the proviso to Section 200 is as is evident from the language employed not to delay such prosecutions by the Municipality in connection with the contravention of the Municipal bye-laws. If the interpretation which the Municipality has put forward is accepted it would defeat the very object of the legislature. To my mind therefore once the information is given about the commission of the offence to the Municipality and when that information is received by the Municipality; in other words when the Municipality comes to know of the commission of the offence then in that case it is the sufficient discovery of such an offence within the meaning of the proviso to Sub-section (1) of Section 200 of the Act.

5. From the facts of this case it is clear that the letters of Vasantlal were sent to the Municipality on the 3rd 4 and 10th November 1958; while actually the prosecution was launched on 13th November 1959. So it is well outside the period of limitation prescribed by the proviso to Sub-section (1) of Section 200 of the Act. In the circumstances the prosecution in this case was barred by limitation.

6. In the circumstances the reference of the learned Extra Additional Sessions Judge Surat is accepted and the order of conviction and sentence passed against the accused is set aside. The fine if paid be refunded.


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