K.C. Chunder, J.
1. This rule was issued at the instance of an accused person who had been convicted by a Municipal Magistrate sitting in a Mobile Court for an offence under Section 386 (l) (c), Calcutta Municipal Act, read with Section 488 of the said Act. The accused' was caught hold of and produced before the Magistrate and the charge against him was that he kept a buffalo. The learned Magistrate's judgment as regards the evidence is this :
'Sukdeo (that is, the accused) does not plead guilty. Section S. G. C. Roy says he has one buffalo. He denied Fined Rs. 15, in default S.I. for week.'
Accepting everything that the Section S. O. G. C. Roy said as gospel truth I fail to see how any conviction could be based on the evidence. Perhaps as it was a mobile Court it was too much for the learned Magistrate to be burdened with a copy of the Municipal Act. If he had barely referred to Section 386 (l) (c) itself he would have seen that it is in these terms :
'(c) keeping horses, cattle or other four footed animals for sale or hire or for sale of the produce thereof'.
Mere keeping of a' buffalo is not an offence and all that the evidence says is that he merely kept a buffalo. The other ingredients, namely, 'for sale or hire or for sale of the produce thereof appear nowhere within the four corners of the report. In submitting his explanation even he does not look up the section to see what error, if any, he has committed. In submitting his explanation to a superior Court he should look up the Act itself. On the evidence adduced the conviction cannot stand.
2. Then again the learned Magistrate was perhaps under the impression that as a Municipal Court he was not guided by any fetters of law or procedure. When the accused pleaded not guilty he had every right to adduce evidence in defence. He was denied this right. I do not know whether it was the learned Magistrate's idea that the Municipal Courts are now to be guided by the principles under which the Kazis used to administer justice during the Mogul rule. The conviction and sentence must therefore be set aside.
3. It was urged before me that as a mere fine was provided for in the Act itself the learned Magistrate had no jurisdiction to inflict a sentence of simple imprisonment in default of payment of fine. My attention has been drawn to two decisions of this Court to that effect, one reported in the case of Basanta Kumari v. Corporation of Calcutta, 15 cal. W. N. 906, and another, which did not notice the previous decision but treated the matter as de novo, by my learned brother Chakravartti and Sinha JJ. reported in the case of Sam Dayal Tewari v. Corporation of Calcutta, 56 cal. W. N. 339. Unfortunately, in both these decisions, it was not noticed that under the Indian Penal Code offences are classified in different ways. In some cases offences are only offences under the Indian Penal Code. It would be right in such cases to say, as the learned Judges of the Division Bench have said, that offences under the Indian Penal Code refer to offences only under that Code. Section 40, Penal Code, is not wholly to that effect. It says that in connection with the provisions of Sections 64 to 67, Penal Code, the word 'offence' includes anything punishable under the Indian Penal Code or under the special or local law as hereinafter defined and in Section 41 special law had been defined as a special law applicable to a particular subject and in Section 42 the local law has been denned as a law applicable only to a particular part of British India. There can therefore be no doubt that the Calcutta Municipal Act will come within the definition of special and local law and Section 64 which deals with imprisonment in default of fine is made applicable under the Indian Penal Code not merely to offences under the Indian Penal Code but also under special and local laws.
Then again, in Section 26, Bengal General Clauses Act, (Act l o 1899), it is definitely provided that :
'Sections 63 to 70, Penal Code, and the provisions of the Code of Criminal Procedure for the time being in force in relation to the issue and the execution of warrants for the levy of fine was applied to all fines imposed under any Bengal Act or any ........'
Therefore Sections 63 to 70, Penal Code, will also apply to the Calcutta Municipal Act as the Calcutta Municipal Act is an Act of Bengal Legislature being Bengal Act 3 of 1923, which is subsequent to Bengal General Clauses Act, Bengal Act 1 of 1899. Therefore with great respect I doubt the correctness of both the Division Bench decisions which appear to me to go against definite statutory provisions. Had it been necessary for me to make a reference to Full Bench I would have done so, but in the present case as the conviction and sentence must be set aside on the ground that the learned Magistrate did not consider himself bound by any provision of law, no reference to the Full Bench can be made.
4. The result therefore is that the rule is made absolute. The conviction and sentence are set aside and the fine, if paid, is to be refunded.