1. In this case a Rule was issued at the instance of the three petitioners Amritalal Bose, Hari Prasad Bose and Dasu Charan Neogi, calling on the Municipal Magistrate and the Chairman of the Corporation to show cause why the sentences imposed on the three petitioners should not be modified and reduced to a sum not exceeding Rs. 20 in all. The grounds were (1) that Bye-law No. 85 does not empower the Magistrate to impose a fine of more than Rs. 20 for a breach thereof, and (2) that the petitioners being joint partners and owners of the Star Theatre were a 'person' within the meaning of Bye-law No. 85 and thus not liable to be fined separately or more than Rs. 20 in all. The learned Judges who heard the Rule having differed in opinion, the case has been laid before me for my opinion under Section 429, Criminal Procedure Code. The three petitioners are the joint proprietors of the Star Theatre in Cornwallis Street. On the night of 3rd September 1916, the performance at that theatre was continued beyond 1 a.m. The three petitioners were summoned for having committed a breach of Bye-law No. 83 and the second petitioner appeared and admitted the offence. The Municipal Magistrate thereupon fined the three petitioners Rs. 20, Rs. 10 and Rs. 10 respectively. The only question is whether the imposition of such penalties was authorised by law.
2. Section 559 of the Calcutta Municipal Act, 1899, provides that the General Committee may make bye-laws, (inter alia), (52) for the regulation of theatres and other places of public resort, recreation or amusement.
3. By Section 561, in making a bye-law under Section 559, the General Committee may provide that a breach of it shall be punishable (a) with fine which may extend to twenty rupees, and, in case of a continuing breach, with fine which may extend to ten rupees for every day during which the breach continues after conviction for the first breach.
4. By bye-laws made under Section 559, for the regulation of theatres, etc., it was provided, (inter alia), (83) no performance shall be continued later than 1 A.M. unless with the special permission of the Chairman for any particular occasion, and (85) every person guilty of a breach of any of these bye-laws shall be punishable (a) with a fine which may extend to twenty rupees, etc., (following the words of Section 561 above quoted).
5. In Paley on Summary Convictions, 6th edition, at page 275, the law is thus stated: 'Though several offenders may be (as it seems) included in one conviction for offences jointly committed, it depends upon the wording of the particular Statutes applicable to each case and the quality of the offence, whether each person be liable to a distinct penalty or all collectively to but one.' The determination of the question, therefore, depends upon the interpretation to be put upon the particular Statute, in this case the Calcutta Municipal Act, 1899. In Rex v. Clark (1777) 2 Cowp. 610 : 98 E.R. 1267 Lord Mansfield thus enunciated the proposition: 'Where the offence is in its nature single, and cannot be severed, there the penalty shall be only single, because though several persons may join in committing it, it still constitutes but one offence; but where the offence is in its nature several, and where every person concerned may be separately gupty of it, there each offender is separately liable to the penalty; because the crime of each is distinct from the offence of the others and each is punisht able for his own crime. 'I am unable to agree, that because in that case the offence was found to be in its nature several, this is a mere obiter dictum. It lays down in clear and unmistakable terms the test to be applied. So, too, the remarks of Alderson, B. in Beg. v. Dean (1843) 12 M. & W. 39 1 : 13 L.J. Ex. 33 67 R.R. 248 : 152 E.R. 1102. 'We must look at the Statute to see whether it was intended that every person offending should be punished, or merely that every offence should be punished. The question is, whether an offence which is committed by several persons is to be visited by one penalty or each person is to be visited by a penalty.' In the case before me I am clearly of opinion that the offence is single in its nature and that the Calcutta Municipal Act provides a punishment for the offence, and not for the individual offenders. The words 'a breach (of a bye-law) shall be punishable' can only mean that. Nor can it have been intended that the penalty to be imposed, i.e., Rs. 20 or Rs. 10 per diem, for a continuing breach, should be indefinitely multiplied in proportion to the number of persons jointly committing such breach.
6. If it be argued that such an intention is indicated by the use of the words: 'Every person' in Bye-law No. 85, and if that was the only possible interpretation to be put upon them, I should be inclined to hold that the bye-law was to that extent ultra viris. But I do not so read it. The word 'person' by the definition in the Bengal Clauses Act, 1899, includes 'any company, or association or body of individuals, whether incorporated or not.' It would, therefore, include the three petitioners as joint proprietors of this theatre and they may properly be regarded as a 'person' for the purposes of Bye-law No. 85.
7. In my opinion the provisions of the Indian Penal Code have no direct bearing on the present question, which is one of the interpretation of the particular Statute. No doubt some of the provisions of that Code are made applicable by the Bengal General Clauses Act, 1899, and in other ways to offences under special and local laws, such as the present. But we are not now concerned with, say, the question of abetment of the breach of a bye-law, and I am not prepared to say that a person might not be charged with such an abetment. The question of intention would then crop up, which finds no place in cases of the breach of many of the bye-laws.
8. So far as Section 64 of the Indian Penal Code is concerned, it has been pointed out that it could not be enforced in case of such a breach of a bye law as that which we are now considering see Basanta Kumari Devi v. Corporation of Calcutta 11 Ind. Dec. 143 : 15 C.W.N. 906.
9. So far as I am aware, the principles laid down in the various English cases for the interpretation of the Statutes, to ascertain whether the offence be single or several in its nature, have not been changed in recent yeafs. In the case of Reg. v. Showdar Ghenar 7 B.H.C.R. Cr. 39 the question came before a Pull Bench of the Bombay High Court. There Westropp, C.J., in an exhaustive judgment reviewed all the English cases, and the Court applying the same test to the Statute then before them (Regulation A & I of 1827, Section 4) held that the several accused could only be liable for the one penalty. This case, which does not appear to, have been cited to the Bench who heard the Rule, shows that in Bombay at least the old English decisions were accepted as sound law in 1870.
10. I agree, therefore, with Chaudhuri, J., in holding that the Rule must be made absolute. The conviction of the three petitioners will be upheld but the penalty imposed upon them will be one of Rs. 20 only, to be apportioned equally between them. Any excess over Rs. 20, if paid, to be refunded.