1. This Rule was obtained by the Commissioners of the Howrah Municipality against an appellate order of acquittal. The facts giving rise to this Rule may be briefly stated as follows: The accused opposite party runs a wheat grinding mill in premises No. 421 Grand Trunk Road, Howrah. He took out a licence for running the mill under the provisions of Section 386 of the Calcutta Municipal Act as extended to Howrah for the year 1951-52 and that license was to expire on 31-3-1952.
Some time in the year 1951 a co-tenant of the accused opposite party made a complaint to the Municipality alleging that the noise and vibration created by the running of the mill constituted a nuisance in the locality. On 6-12-1951 the Chairman of the Howrah Municipality informed the said complainant that the Chairman would hold a local inspection.
On 24-4-1952 the Chairman with the Health Officer and the Sanitary Inspector inspected the premises and came to the conclusion that the licence should not be renewed for the year 1952-53 because the complaint made by the accused person's co-tenant was true. On 30-4-1952 the accused opposite party was informed of the Chairman's order and asked to close the shop within a fortnight.
On 12-6-1952 the Chairman ordered the Sanitary Inspector to inspect the locality again to see whether the shop was closed. On 17-6-1952 the Sanitary inspector inspected the locality and found that the accused opposite party was still running his mill without a licence.
Accordingly on 8-7-1952 a complaint was filed against the accused opposite party under Section 488/i 386 of the Calcutta Municipal Act, as extended to Howrah.
2. The defence of the accused opposite party was that he had taken out a licence under Section 388 of the Act for the year 1951-52 and that he applied for renewal of the licence and was willing to pay the licence fee for the year 1952-53 but that defence was given up and the accused opposite party contended that a licence under Section 388 once granted continued to be valid till it was revoked or suspended under the provisions of Section 498 of the Calcutta Municipal Act, as extended to Howrah.
3. The trial court overruled the defence and convicted the accused opposite party and sentenced him to pay a fine of Rs. 150/- and costs -/8/- as., in default to simple imprisonment for one month. Against the order of the trying Magistrate the accused opposite party filed an appeal and the appellate court upheld the contention of the accused opposite party and made an order of acquittal on the ground that the licence under Section 386 was not limited to any particular period and it remained in force till it was suspended or revoked by the Municipal Authorities,
Against the appellate order of acquittal the Commissioners of the Howrah Municipality moved this court under Section 439, Criminal P. C. which gave rise to Criminal Revision Case No. 1133 of 1953. This Revision Case was heard over a Bench consisting of Mitter and Sen, JJ. Both of them held that the decision of the appellate court to the effect that the licence granted under Section 386 remained valid till it was revoked was wrong but before the Division Bench the accused opposite party for the first time raised a question that in the circumstances of the present case the prosecution was barred under the provisions of Section 534 of the Calcutta Municipal Act.
Mitter, J. held in favour of the accused opposite party on that point but Sen, J. held that the prosecution was not barred. The result was that according to the Judgment of Mitter, J. the rule should be discharged though on a ground different from that which was given by the court of appeal below, but Sen, J. came to the conclusion that the rule should be made absolute and the order of acquittal should be set aside.
On account of this difference of opinion between Mitter and Sen, JJ. on the question of limitation the case has been placed before me by an order of the Hon'ble the Chief Justice.
4. After hearing Mr. Roy for the petitioners and Mr. Sarkar for the accused opposite party I have come to the conclusion that the prosecution is not barred under Section 534 of the Calcutta Municipal Act, as extended to Howrah. That section prescribes a period of limitation of three months within which a complaint of an offence under the Act or under any rule or bye-law made thereunder is to be filed before a Magistrate unless the offence is under Section 136 in which case the period of limitation is six months.
The starting point of the period of limitation under clause (a) of Sub-section (1) is the date of the commission of the offence and under clause (b) of ub-Section (1) if such date is not known or the offence is continuous in nature the date on which 'the commission or existence of such offence was first brought to the notice of the Commissioners or the Chairman.' Sub-section (2) of Section 534 provides that failure to take out a licence under the Act shall be deemed to be a continuing offence until the expiration of the period for which the licence is required to be taken.
5. Mr. Roy, appearing in support of the Rule, has argued that whichever clause is applied the prosecution is not barred. His argument is that even if cl. (b) is applied the date on which the commission or existence of the offence was first brought to the notice of the Chairman was 24-4-1952 on which date the Chairman held a local inspection and as the complaint was filed on 8-7-1952 it was within three months from the date on which the commission or existence of the offence was first brought to the notice of the Chairman.
I am of opinion that this argument is correct and must be accepted. In the instant case the opposite party took out a licence for 1951-52. In 1951 the Chairman received a complaint from a co-tenant of the accused opposite party to the effect that the noise and the vibration caused by ' the running of the mill constituted nuisance.
The complaint made by the co-tenant in 1951 cannot be said to be a complaint relating to any offence because the accused opposite party was entitled to run the mill under the terms of the licence for 1951-52 which remained in force up to 31-3-1952. Clause (b) of Section 534 (1) requires that the notice must be of the commission or existence of an offence.
As the act of the opposite party did not amount to an offence in 1951 I am unable to hold that the complaint of the co-tenant was a notice of the commission or existence of an offence. Mitter, J. has held that the starting point of limitation in the present case is 1-4-1952 that is the date on which the opposite party for the first time ran his mill without the licence because under the terms of Section 498 (4) the opposite party shall be deemed to be without a licence from that date.
The difficulty of accepting this conclusion is that on 1-4-1952 the Municipality had no knowledge as to whether the opposite party was still running his mill, it is nobody's case that on that date any fresh complaint was made to the Municipality about the act of the opposite party.
In order to constitute an offence under Section 386 two elements must be established - (1) that the opposite party was running his mill even after 31-3-1952 and (2) that he was doing so without a licence. Assuming that the Municipality had knowledge of the second element there is nothing to show that it had any notice of the first and the Municipality had notice of the first element for the first time on 24-4-1952 when as the result of the local inspection the Chairman came to know that the, opposite party was still running his mill.
But apart from this there is still another reason why I cannot hold that the Municipality had notice of the existence or commission of the offence on 1-4-1952. In 1951 the co-tenant of the opposite party alleged that the running of the mill by the opposite party constituted a nuisance. This allegation might be true or false or malicious and unless it was verified by local enquiry by the municipal authorities it could not be said that the Municipality had any notice of the commission or existence of the offence.
The commission or existence of the offence had to be objectively ascertained before the Municipality could be said to have any notice of it. Mr. Roy has relied upon the decision of Henderson, J. in the case of - 'Atul Chandra Bhandary v. Corporation of Calcutta' AIR 1342 Cal 142 (2) (A) where it was held that in order to constitute an offence under S. 386 of the Calcutta Municipal Act the Chief Executive Officer or the relevant municipal authority had to form an opinion on the question as to whether the act of the accused constituted a nuisance.
It follows, therefore, that the Chairman could not form any opinion about the act of the acrfused opposite Party till he had inspected the locality and when after a local inspection he came to the conclusion that in his opinion the running of the mill constituted nuisance it was only then that an offence under Section 386 could be said to have been brought to his notice. For these reasons I am unable to agree with my learned brother Mitter, J. that the starting point of limitation in the present case was 1-4-1952.
Nor can I agree with my learned brother Sen, J. that the period of limitation began to run from 30-4-1952 on which date the order of the Chairman was communicated to the accused opposite party. It is to be noticed that under Section 534 (1), clause (b) the starting point of limitation is the date on which the commission or existence of the offence is first brought to the notice of the Chairman.
The date on which the Chairman's order is communicated to the opposite party is immaterial. In my opinion, the commission or existence of the offence was, in this case, for the first time brought to the notice of the Chairmaaon 24-4-1952 when as the result of the enquiry the Chairman came to know that the opposite party was running his mill without a licence.
As the prosecution was started within three months from that date I am of opinion that it was not barred. Mitter J., in his Judgment has relied upon the decision in the case of - 'Corporation of Calcutta v. Ganesh Chandra Dhar' : AIR1936Cal20 .
That was a case where the prosecuting authority, namely the Corporation of Calcutta, adduced no evidence to show when the offence was first brought to their notice and in those clr-cumstances Bartley J. with whom Guha, J. con-curred, held that it was the duty of the Corporation to establish in the first place that the proceeding, begun at such a late date, was still within the period of limitation prescribed by law.
In the case before me, however, the Municipality of Howrah has adduced evidence to show when the commission or existence of the offencewas first brought to their notice. For these rea- sons I am unable to hold that the decision lathe case of : AIR1936Cal20 has any appll-cation to this case.
Similar observations also have to be madewith regard to the case of - 'Nagendra NathBhowmick v. The King' AIR 1949 Cal 664 (C). IThere also the Municipality concerned adduced ,no evidence to prove when the commission orexistence of the offence was first brought to theirnotice.
6. Mr. Roy has further argued that thepresent case should be governed by Section 534 (1) (a)read with Section 534 (2). His argument is that under Sub-section (2) of Section 534 the offence in the present caseis a continuing one up to the expiration of theperiod for which the licence was required to be taken out, that is, up to 31-3-1953 and under Section534 (1) (a) the municipality gets three monthsfrom 31-3-1953.
Otherwise according to Mr. Roy the strange result would follow that although there is a continuing offence up to 31-3-1953, the municipality would have no right to start a prosecution after ; the expiry of three months from 24-4-1953 on which date the commission or existence of the offence was first brought to the notice of the municipality.
In support of this proposition Mr. Roy hasrelied upon the decision of a Division Bench ofthe Patna High Court in the case of 'State of Biharv. ishri Bhagaf : AIR1954Pat249 . In thatcase the Patna High Court was considering theinterpretation of Section 375 of the Bihar and OrissaMunicipal Act. That section is in the followingterms:
'No prosecution for an offence under this Act or any by-law made in pursuance thereof shall be instituted ............ except within sixmonths next after the commission of such offenceunless the offence is continuous in its nature,in which case a prosecution may be institutedwithin six months of the date on which the commission or existence of the' offence was first'brought to the notice of the Chairman of the|municipality:
Provided that the failure to take out any licence under this Act shall be deemed to be a continuing offence until the expiration of the period for which such licence is required to be taken out.'
It appears that the provisions of Section 375 of the Bihar and Orissa Municipal Act, as quoted above, I are very similar to the provisions of Section 534 of the Calcutta Municipal Act with this difference that whereas under the former the periodof limitation is six months, in the latter it la three months.
As I have already held in favour or the municipality on the first point raised before me by Mr. Roy it is not necessary for me to express any final opinion on the second point.
7. For the reasons given above, I make this Rule absolute and set aside the order passed by the Assistant Sessions Judge, Howrah.
8. I have now to consider the question as to whether I shall send this case back to the trial court or to the lower appellate court. Mr. Sarkar, appearing for the accused opposite party, has strenuously contended before me that I should send the case back to the trial court in order to enable his client to adduce fresh evidence to prove that the commission or existence of the offence was first brought to the notice of the municipality on 1-4-1952.
I am afraid, I cannot accede to this prayer. The question of limitation was not raised by the accused opposite party either before the trying Magistrate or before the court of appeal below and it was raised for the first time in course of the argument in this court in Criminal Revision Case No. 1133 of 1953 and the Division Bench which heard that revision case gave its decision upon the materials which were on the record and I have also given my decision upon the same materials.
In my opinion, it will be unfair to the prosecution to allow the accused opposite party to raise a new point about limitation after the case has passed through four courts. In the case of Satish Chandra Das v. Chinta Haran Saha' : AIR1938Cal613 a Division Bench of this court after setting aside an appellate order of acquittal sent the case back for re-hearing of the appeal by the lower appellate court.
Following that precedent I direct that the case should now go back to the lower appellate court and be heard by some other Judge to be nominated by the Sessions Judge in accordance with law, upon the materials already on the record.