1. This is an appeal by six persons who were convicted of an offence under Section 395 (2), Calcutta Municipal Act, and each sentenced to pay a fine of RSection 1000 and in default of payment each was directed to undergo simple imprisonment for five months Under Section 395 (2)/488.
2. The six accused persons are shebaita of a deity. It appears that all six were minora and proceedings seem to have been taken against them through their mother as a kind of guardian ad litem. There is nothing on the record to show what the age of these six persona were, but it i8 unnecessary to conaider whether they could or could notice be guilty of any criminal offence because the appeal can be disposed of on other grounds.
3. The section creating the offence of which they were convicted is Section 395 (a), Calcutta Municipal Act, which is in these terms :
No person shall establish a new private market for the sale of, or for the purpose of exposing for sale, animals intended for human food, or any other article of human food, except with the sanction of the Corporation.
4. It will be seen that the offence contemplated is the offence of establishing a new market.
5. According to the prosecution the accused started a new market on land belonging to them at a plot numbered 26 Indra Biswas Road, On that plot certain hogla aheds were erected and a regular bazar was conducted in which fish, vegetables and other eatablea were sold. The bazar, it is said, was looally known as Bhowmick Babus' bazar named after the accused persons.
6. On 17th January 1947 one Baidya Nath Khan complained to the City Architect of the Calcutta Corporation that this new market was being carried on at No. 26 Indra Biswas Road and eventually investigation into the matter was made by various officials of the Corporation. On 18th March 1947, the Building Committee of the Calcutta Corporation passed a resolution directing the accused to demolish the structures erected on this plot which had been built without sanction. On 17th May 1947, the accused persons submitted a plan to the Corporation for the construction of a dwelling house on this plot and this plan was sanctioned by the Corporation on 18th June 1947. The accused persons, however, did not build in accordance with the sanctioned plan, but built with a view to meeting the requirements of a market.
7. The Corporation, however, took action and on 17th May 1947, a complaint was filed in Court alleging an offence Under Section 395 (2), Calcutta Municipal Act.
8. The learned Magistrate came to the con-elusion that the accused persona had established a new market on this plot No. 26 Indra Biswas Road without the previous consent or sanction of the Corporation. He accordingly held that an offence had been committed under Section 396 (2) and sentenced each of the accused in the manner indicated.
9. Mr. Sudhansu Mukherjee who has appear. ed on behalf of the appellants has taken a point that this prosecution was out of time and has relied upon Sub-section (1) of Section 534, Calcutta Municipal Act. That Sub-section is in these terms:
No person shall be liable to puniehroent for any offence against this Act or against any rule or by-law made thereunder, unless complaint of such offence is made before a Magistrate within three months, or, if the offence be against the provisions of Section 136, within six months, next after
(a) the date of the commission of such offence or;
(b) if such date is not known or the offence is continuous in its nature, the date on which the cot mission or existence of such offence was first brought to the notice of the Corporation or the Executive Officer.
10. The offence is not an offence against the provisions of Section 136 of the Act and, therefore, the Sub-section requires that the complaint should be made within three months from the date of the commission of the offence or if the date is not known within three months of the date on which the commission or existence of the offence was first brought to the notice of the Corporation or the Executive Officer.
11. Mr. Mukherjee does not suggest that the date of the commission of the offence is known. But he contends that the commission of the offence was brought to the notice of the Corporation on 17th January 1947, when Baidya Nath Khan made a written complaint to the City Architect. Mr. Mukherjee has contended that the Corporation were bound, therefore, to make a ctmplamt witbin three months of that date and as they failtd to do so be prosecution would lie. The complaint which they made was made in May which was clearly beyond three months of 17th January 1947.
12. Mr. Debabrata Mukherjee who has appeared on behalf of the corporation has contended that there is nothing to show that the corporation had notice of the commission of this offence at any time beyond three months from the date of the complaint. He has to admit that the City Architect received notice on 17th January 1947, but he has contended that notice to the City Architect is not notice to the Corporation. He has urged that notice can only be given to the Corporation through the Executive Officer and as-this notice of 17th January 1947 was not given to the Executive Officer it was not a good notice to the Corporation.
13. It is to be observed that Section 395 (a) contemplates notice to the Corporation or the Executive Officer and that implies that notice can be given to the Corporation other than through the Executive Officer. It is provided by Section 5, Calcutta Municipal Act that the Corporation is a body corporate and has perpetual succession and is to consist of certain councillors and aldermen. It is quite dear that the corporation is a-legal person and has an existence apart from its members. It is a body that can receive notice, but like all bodies corporate it can only receive notice through its proper agents. A body corporate has no physical existence and as one writer Became it has no body to be kicked or soul to be damned. The Sub-section to my mind clearly contemplates that notice can be given to the Corporation other than by notice to the Executive Officer. A body corporate can only receive and read a notice through its agents and if an agent is authorised to receive a complaint, it appears to me that once that officer has received it the corporation has received it.
14. In my view it is unnecessary to decide whether the City Architect was authorised to receive a complaint about the establishment of a new market on behalf of the corporation. Mr. Mukherjee has contended that the Health and Sanitary Department is the proper department to be addressed on these matters. If that be so, then it is quite clear that the corporation had information about the existence of this market before the end of January 1947. Dr. J. N. Bose, P.W. 1, was called on behalf of the corporation. He is the sanitary officer of the corporation and he stated that he made a local enquiry and investigation and found that this market was in existence at the end of January 1947. He must have been instructed to do so by the head of the department or some responsible official, and it is, therefore, clear that the information given to the City Architect on 17th January 1947, had been passed on to the appropriate quarter. Further, it is clear from the records of the Building Committee that the existence of this market was first known to the corporation in January 1947, There is a document on the record recording what took place before the Building Committee on 17th March 1947. In this document it i3 stated that the unauthorised work, namely, hole sheds on no. 26 Indra Biswas Road which were being used as a market was first detected in January 1947 and was inspected on 25th January 194,7 by some official, referred to as D. E. S., who, we are told, is the district building surveyor. It is, therefore, clear that before the end of January all the departments of the corporation which were concerned in this matter were aware of this unauthorised construction and, therefore, it appears to me beyond all shadow of a doubt that the date upon which the commission of this offence was first brought to the notice of the corporation was certainly before the end of January 1947. If that be so then the complaint which was made in May was long after the expiration of three months and was therefore, out of time and no person could have been convicted in respect of the offence.
15. Mr. Sudhansu Mukherjee has also con-tended that if it was not known when the corporation first had notice of the establishment of this market, nevertheless there could be no conviction unless the corporation showed that the prosecution was launched within three months of their receiving notice. Reliance was placed upon a Bench decision of this Court in Corporation of Calcutta v. Qanesh Chandra Dhar : AIR1936Cal20 , in which it was held that the provisions of Section 534, Calcutta Municipal Act, indicated the necessity for prompt action and delay in prosecuting an offence under the Act was as little to the interest of the corporation as to that of the rate payers, Bartley J. who delivered the judgment of the Bench observed :
Now Under Section 534 of the Act, no person is liable to punishment for an offence unless the complaint is made within three months of its commission, or, in the ease of a continuing offence, of the date on which the offence was first brought to the notice of the Executive Officer or of the corporation. In the present case, there is no evidence whatever on record to show when the offence was first brought to notice, and in view of their delay In taking action, it was obviously the duty of the corporation to establish in the first place, that proceedings begun at such a late stage wore still within the period of limitation prescribed by law.
16. If this case is correctly decided, then it was incumbent on the prosecution to show that this prosecution was launched within three months of the date upon which the corporation first had notice. Even if the notice to the City Architect and the other evidence do not prove notice to the corporation, nevertheless this prosecution will be bound to fail because the corporation had failed to show that it had been brought within time. However, it is unnecessary to rely on this Bench decision, because it is clear on the facts of this case that every department of the corporation concerned in this matter was fully aware of this offence before the cod of January 1947. The prosecution should have been launched by certainly the end of April and the complaint was filed clearly beyond time. That being so, the accused should not have been convicted.
17. In the result, therefore, this appeal is allowed, the convictions and sentences are set aside and the accused persons are acquitted. The fines, if paid, must be refunded.
J. P. Mitter J
18. I agree.