Lawrence H. Jenkins, C.J.
1. In this case a Rule has been issued calling on the Municipal Magistrate of Calcutta to show cause why the order of conviction of the petitioner should not be set aside on the ground that the learned Magistrate ought to have held that the prosecution was barred under Section 631 of the Calcutta Municipal Act. The facts are briefly these. It has been found by the Municipal Magistrate that two pillars have been placed by the petitioner in such a position as to cause an encroachment on a public street. On the 3rd of August 1908, the Chairman of the Municipality by a written notice called on the petitioner to remove this obstruction within seven days. He purported to act under one of the Municipal bye-laws, which deal with obstructions and encroachments. The notice was not obeyed, and, on the 8th of February 1909, these proceedings were commenced with the result that the Magistrate held an offence for breach of the bye-law to be established, and fined the petitioner Rs. 5. In these circumstances the present Rule has been issued.
2. It is provided by Section 631 of the Calcutta Municipal Act that 'No person shall be liable to punishment for any offence against this Act, or any rule, bye-law, or regulation made here under, unless complaint of such offence is made before a Magistrate within three months next after the commission of such offence.' Here the complaint was made more than three months after the expiration of the period limited in the notice for the removal of the obstruction. It is conceded before us that the section I have just read would be a bar unless it can be established that the Bye-law No. 1 relating to obstructions and encroachments created a continuing offence applicable to the circumstances of the case. But it is contended by Mr. Mallik, who has argued this case ably on behalf of the Municipality, that the bye-law does in fact create a continuing offence, and, therefore, the bar indicated in Section 631 has no application. But a bye-law must conform with the provisions of the enactment under which it purports to be made, and this particular bye-law, which we are now considering, is said to be sanctioned by Section 559, Clause (18) of the Calcutta Municipal Act of 1899. It may be conceded that, so far as it relates to obstructions, it comes within the provisions of Clause (18) of Section 559, except, perhaps, so far as it purports to deal with obstructions whether before or after the passing of the bye-laws. But that is a matter on which we need pronounce no opinion now. The question is whether it creates a continuing offence in the manner authorized by Section 561(b) of the Act. Clause (a) of this section can admittedly be left out of consideration, for it is of no assistance for the purpose of this case, and the section without Clause (a) reads as follows: 'In making a bye-law under Section 559, the General Committee may provide that a breach of it shall be punishable with fine which may extend to ten rupees for every day during which the breach continues after receipt of written notice from the Chairman to discontinue the breach.' Therefore, the section only authorizes the penalty for the continuance of a breach where notice follows the breach. Returning to the bye-law, we find that the penalty is attached to a breach which only arises after the notice, and that there is no provision for any subsequent notice which would come within the provisions of Section 561 requiring that there should be notice after breach. Therefore, the bye-law purports to create a continuing breach which is outside of, and fails to comply with, the provisions of election 561, Clause (b). It follows from this that there is no provision for a continuing breach that could, even on the argument of the Municipality, take the case outside the provisions of Section 631.
3. Had the bye-law been correctly framed, it would have been a question whether limitation would not run from the time when the offence was first committed, for it is to be noticed that the words of the section are that the complaint must be made within three months next after the commission of such offence. There are authorities which bear on that point, but the question does not arise in the view I take of this case, and I therefore do no more now than guard myself against being taken to accede to the argument that has been addressed to us on that point. The result is that, in my opinion, the Rule must be made absolute, and the order of conviction set aside. The fine, if paid, must be refunded.
4. I agree.