1. This rule has been obtained by the petnr. who has been tried for contravening certain provisions of the District Board Bye Laws and who has been convicted for disobeying Section 46 read with Sections 2 & 3 of the aforesaid Bye Laws and sentenced to pay a fine of Rs. 30, in default to undergo simple imprisonment for one month.
2. The case against the petnr. briefly is that he encroached upon the District Board Road and in spite of notice did not remove the encroachment.
3. The defence is that there was no encroachment upon the District Board Road but that the alleged obstructions were made upon the land of the petnr. The next point taken was that the prosecution was void ab initio by reason of the fact that there was no sanction by the Board for this prosecution.
4. In view of the conclusion at which I have arrived it will not be necessary for me to go into the question whether or not there has been a disobedience of the Bye Laws. Section 141, Bengal Local Self-Govt. Act, 1885, provides that a prosecution under this Act for breach of its Bye Laws may be instituted by any board or by any person authorised by the Board in this behalf. The question for determination is as to whether this prosecution was instituted by the Board or by any person authorised by it. When the point was raised in the trial Court the learned trying Magistrate met it by saying: that Ex. (6) filed by the prosecution shows that sanction was obtained from the Dist. Engineer who was in sole charge of the department concerned. Now, there is no provision in the Act for the granting of any sanction by the District Engineer. Sanction must be granted by the Board. The learned trying Magistrate was, therefore entirely wrong in holding that sanction by the District Engineer was sufficient. On appeal the lower appellate Court took a more reasonable view. The learned Magistrate on appeal held that it was apparent from Ex. (6) that a report was made by the District Engineer to the Chairman recommending the prosecution of the accused and asking for the engagement of a Mukhtar. He states that on this report a Mukhtar was ordered to be engaged. From these facts he concludes that there must have been a sanction by the Chairman of the Board.
5. Learned advocate appearing on behalf of the prosecution contends that sanction may be given not only by the Board but also by its Chairman and refers me to Section 31-A, Bengal Local Self-Government Act, 1885. I accept this contention. Section 31-A to my mind makes it quite clear that the Chairman of the District Board may make an order sanctioning the prosecution. The section says that the Chairman of a Board shall for the transaction of the business connected with this Act or for the purpose of making any order authorised by the Act exercise all the powers vested by this Act in the District Board. Thus, the Chairman of this District Board could sanction the prosecution of this accused. The question, however, is whether there has been such a sanction by the Chairman. There is really no proof of any such sanction. Exhibit (6) has been put in and all that it shows is that the District Engineer wrote to the Chairman recommending the prosecution of the accused and suggesting that a Mukhtar may be selected. All that appears on Ex. (6) are two endorsements, 'the Mukhtar Amulya Roy be engaged' and 'H. C. for needful.' There is no evidence that these endorsements are signed by the Chairman. Next, the mere engagement of a Mukhtar does not necessarily amount to sanction for a prosecution. The Mukhtar may be engaged for the purpose of going into the facts of the case and giving his opinion as to whether there should be a prosecution or not. On this unsatisfactory state of the evidence I cannot hold that the prosecution has succeeded in proving that sanction of the Board or of its Chairman had been obtained before the prosecution. Before any Court can take cognisance of an offence of this description it must be proved conclusively to the Court that the sanction of the Board or its Chairman has been taken. There is no such proof and therefore I hold that the prosecution is void ab initio and that all the proceedings held and orders passed thereunder are null and void.
6. I accordingly set aside the conviction of the accused.
7. I express no opinion whatsoever on the question whether a fresh prosecution may be launched against the accused upon proper sanction being taken.