1. The question involved in this Rule is one of considerable nicety and of some importance. The petitioner set up a flour mill in a room at premises No. 139-1, Russa Road, intending to work it by electricity without the previous written permission of the Corporation and was convicted under Section 385, Clause (1) read with Section 488, Clause (1), Calcutta Municipal Act, and was sentenced to pay a fine of Rule 10 on 30th March 1927. Since the said conviction he, to quote the words of the 'sanitary officer, 'worked the mill from the 1st April onwards.' That officer further deposed thus:
I inspected the mill in May and I found it working. After the last conviction the accused did not apply for permission under Section 885 nor has he got any. If the accused had applied, the permission would have been refused as the site and locality are unsuitable for the working of an electric mill.
2. For this he was prosecuted for having committed an offence under Section 385, Clause (1) read with Section 488, Clause (2) of the Act for a period of 30 days commencing from the 1st April 1927, arid was sentenced to pay a daily fine of Rs. 10, i.e., to an aggregate fine of Rs. 300. He has then obtained the present Rule.
3. The question that arises for consideration is whether what was done by the petitioner amounted to a continuance of the offence mentioned in Section 385, Clause (1) of the Act. The ingredients of an offence contemplated by that section are first, the new establishment or material alteration, enlargement or extension of factory, workshop or workplace, and, second, an intention to employ steam, electricity, water or other mechanical power therein. It is conceivable that' the establishment should be in progress or that the alteration, enlargement or extension should be made after a conviction; is once had, and, if any of these things is done, the second ingredient mentioned above being present, the act would amount to a continuance of the offence mentioned in the section. Once, however, the mill has begun to work with electricity, etc., the thing passes beyond the range of intention that forms the second ingredient of the section, and it cannot be said to be a continuance of the same offence, but must be regarded as a new offence altogether, ft is not necessary to enquire whether the legislature has provided for such an offence, but evidently it has in Section 386, Clause (1) of the Act. The argument upon which the learned Magistrate has relied a good deal, namely, the disparity between the daily fines provided for continuing offences relating to Section 385, Clause (1) and those relating, to Section 386, Clause (1) cannot be of any assistance in construing the meaning of the said sections. It is not difficult to explain this disparity, and I do not feel pressed by the argument that to hold as above will be to make the petitioner liable to lesser penalty. I think the statute has made ample provisions for safeguarding the interests of all concerned and it is not necessary to strain the words of Section 385, Sub-section (1) to include within it cases which, on the face of the wording thereof, are outside its scope and which easily and clearly come within the next section.
4. In this view of the matter I am of opinion that the conviction of the petitioner is bad in law and must be set aside, and the fine if paid; should be refunded. The Rule is accordingly made absolute.
5. It appears that there is considerable dispute as regards the date when the petitioner applied to the Corporation for permission to establish or to work the mill. In the interest of everybody, the matter should be cleared up and it is desirable that the permission should either be granted ordefinitely refused as speedily as possible, and, in the latter case, if that be the case, effective measures should be adopted so that the statutory authority of the Corporation may not be defied or flouted.