Macpherson and Banerjee, JJ.
1. This is an appeal on behalf of the Government of Bengal under Section 417 of the Code of Criminal Procedure against an order of the Deputy Magistrate of Satkheria, acquitting the accused Shama Charan Ghose, who was prosecuted under Section 146 of the Bengal Municipal Act (Bengal Act III of 1884), for not registering his cart according to the provisions of Section 142 of that Act.
2. The facts of the case, which are few and simple and are admitted on both sides, are given in the following words in the judgment of the Court below:
It is admitted that the accused does not live within the Municipality and keeps his cart outside its limits. It is also admitted that the accused brings his cart twice every week within the Municipality throughout the year. A hat is held on Sunday and Wednesday within the Chanduria Municipality, and the accused brings his cart there on those days.
3. Upon these facts the registration of the cart of the accused under Section 142 of the Bengal Municipal Act would be necessary only if it could be held that it was 'habitually used' within the limits of the Municipality, within the meaning of that section, by reason of its being brought within the said limits twice every week. The Court below has held that it could not be said to have been habitually so used, and it has accordingly acquitted the accused.
4. Mr. Ghose, who appears on behalf of the local Government, contends, firstly, that the word 'habitually,' as used in Section 142 of the Bengal Municipal Act, means 'regularly,' though it may be at fixed intervals, and applies to cases where the use is periodical only, and that this view is borne out by the exceptive Clause (b) of the section; and, secondly, that even if the word 'habitually' be incapable of being defined as a matter of law, still, as a matter of fact, the Court below ought to have held that the cart was in this case habitually used within the limits of the Municipality.
5. We do not consider either of these contentions to be correct. If the first contention be accepted it would lead to most anomalous results. For not only use twice a week, but any periodical use, such as once a week, or once a month, or once in six months, would be habitual use, rendering registration of a cart so used necessary, a result which could never have been intended. Nor do we think that exceptive Clause (b) of the section lends any support to the appellant's contention. That clause merely says that the section does not apply to 'carts which are kept without the limits of the Municipality, and are only temporarily and casually used within such limits.' But it does not mean that all carts kept outside the Municipality, which are used within it otherwise than casually and temporarily, come necessarily within the section.
6. It is not easy to say what meaning the Legislature intended to convey by the word 'habitually.' When it has used a vague word like that, and has not thought fit to define or explain it, we think the intention was, not to use it in any sense capable of being exactly defined as a matter of law, but to leave it to the Court to determine in each case, as a matter of fact, whether the use was habitual or not.
7. This brings us to the consideration of the second contention urged on behalf of the appellant. Without meaning to lay down any hard and fast rule, we think we may say that the word 'habitually' imparts some degree of frequency, and that in order that a cart may be said to be 'habitually used' within the limits of any Municipality, it must be used within those limits oftener than it is not, regard being had to the total extent of use within and without the Municipality to which in due course of business it is, or might reasonably be put. Considering the nature and extent of the use in the case before us, we do not think it would be right to hold that the cart of the accused was 'habitually used' within the limits of the Municipality.
8. The appeal, therefore, fails, and must be dismissed, and the order appealed from affirmed.