1. This appeal by special leave is at the instance of the Corporation of Calcutta. The respondent, Sudhamoy Bose. was acquitted by the Municipal Magistrate on the ground that no permission to prosecute the accused opposite party had been obtained from this Court which had appointed him Receiver (in suit No. 1224/50 of this Court in its Original Side; Jagmohon Kotari v. Dawdoyal Kotari..
2. Briefly, the facts are as follows; The opposite party is a Receiver in respect inter alia of premises No. 201A, Harrison Road. He was prosecuted for exercising the calling of a Private Market Owner at 201A Harrison Road without a license under Section 222 read with Schedule VII of the Calcutta Municipal Act (West Bengal Act XXXIII. of 1951); for the second half-year, 1956-57, on payment of Rs. 60/-. It was alleged that the Corporation staff had to remove on average more than 5 cubic feet of refuse matter daily. The case of the opposite party was that the premises did not constitute a Private Market, the fact being that certain shop rooms on the ground floor had been let out to tenants for the exclusive business of sale of cloth. It was stated that the cloth business was being carried on at the instance of tenants for the last half a century or so and at no point of time the opposite party or his predecessor in interest had ever taken any license under Section 222 of the present Calcutta Municipal Act or under any pre-existing Act. Accumulation of refuse materials was also denied. Private sweepers who were engaged for the premises were said to have removed instantly even a bit of paper. Above all, it was the opposite party's contention that in the absence of permission of the Court he could not be prosecuted In his capacity as a Receiver. This contention was accepted by the Municipal Magistrate who acquitted him.
3. Against this background the existing law on the subject of leave to prosecute a Receiver may be considered.
4. As has been laid down in unmistakable language, on a wide survey of case-law on the subject, in Banwarilal Agarwal v. Sudhamoy Bose, 59 Cal WN 481, the rule requiring leave to sue a Receiver has as its basis considerations of public policy and this rule has become a part of the law of the land and crystallised into a rule of law, and this rule is applicable to all actions statutory or otherwise unless there are exceptions recognised in the rule itself or unless such exceptions are made expressly or inipliedly by the statute in question conferring the particular right of action.
5. The earliest decision on this point in so far as a criminal case is concerned is to be found In Dunne v. Kumar Chandra Kishore, 7 Cal WN 390. It was a case under Section 145 of the Criminal Procedure Code. Overruling an objection that if a Receiver was to be excepted an exception which is not contained in the statute will be imported it was held that the Receiver could not be made a party to any proceeding without previous leave of the court appointing him. This principle was re-iterated in Fink v. Calcutta Municipal Corporation, 7 Cal WN 706. The fine imposed on the Receiver by the Municipal Magistrate for not taking steps to close certain service privies and to make certain Structural alterations in a certain building under his control as Receiver, was ordered to be refunded on the ground inter alia that a Receiver could not be made a party to any proceedings without leave of the court appointing him.
6. It was held in Anath Nath Dev v. Mahendra Nath Srimaney, 13 Cri LJ 488 (Cal), by a Division Bench of this Court that it was not a general rule of law that in all criminal proceedings the leave of the court was not necessary to prosecute a Receiver. It was a case of defamation, arising out of a matter of repairs of the estate in the possession of the Receiver and was based upon a letter in which he claimed that he was acting on behalf of the estate. It was held that leave was required to proceed against a Receiver when he acted for the protection of the estate in his hands. But it was observed:
'The petitioner is at liberty to move the court on the Original Side and obtain an order either for leave to prosecute or stating that leave is not necessary'.
7. In Nagendra Nath Srimaney v. Jogendra Nath Srimaney, 13 Cri LJ 491 (Cal), Fletcher, J. held that the permission of the court appointing a Receiver was not necessary in order to proceed against him for breach of the ordinary criminal law of the country, e.g. defamation. The abovementioned judgment of the Division Bench preceded that of the single Judge by about a fortnight. The ratio decidendi was that the protection of the estate was in question, as in the instant case -- an aspect not touched in the latter judgment.
8. In Santok Chand v. Emperor, ILR 46 Cal 432: (AIR 1919 Cal 647), it was held by Chitty and Beachcroft, JJ. that it was not open to the complainant to commence proceedings against the accused without previous leave and that the criminal proceedings were improperly instituted against the accused Receiver because leave of the court had not been first obtained.
9. The two cases reported in 7 Cal WN 390 and 7 Cal WN 706, which have been referred to above, do not appear to have been noticed in Jnanendra Nath v. Nilmoney De : AIR1939Cal701 , which struck a somewhat dissentient note. The learned Judges who decided the case assumed that the Magistrate had jurisdiction to take cognisance of the offence alleged, observing that there was a great deal of force in the argument that Section 190 (1) (a) of the Code of Criminal Procedure was conclusive on the question of jurisdiction. The learned Judges, however, found that it was not proper on the part of the Magistrate to proceed with the complaint in the absence of leave of the Court.
10. The decision in the case of Khim Chand v. Dev Karan Mulji, ILR 52 Bom 898 : (AIR 1928 Bom 493) wherein it was held that under the Criminal Procedure Code the sanction of the Court was not necessary to prosecute a Receiver for an offence committed by him, seems to have been based on the assumption that 'a criminal offence by a Receiver would be clearly in respect of an act committed in excess of the authoritv of the Receiver'. Moreover, it proceeded on the footing that the question was one of regular sanction under Section 197 of the Criminal Procedure Code and not permission or leave of the Court appointing the Receiver. It is difficult to accept the broad proposition that an alleged criminal offence must always involve an act committed in excess of the authority of the Receiver, irrespective of the facts of any particular case even when it is clearly done for the protection of the estate as an integral part of the duties of the Receiver, particularly when the offence is merely a technical one. It must not be forgotten that the Receiver is an officer of the Court and but for the salutary provision of leave to prosecute the work of the Receiver may be made impossible by flooding him with frivolous criminal cases as well as civil suits). The authority of the Court, whose officer he is, is not to be obstructed light-heartedly or brought into contempt by designing people when the Receiver is prima facie acting within his rights.
11. A case of the Madras High Court, In re, Raja Veerabasava Chikka Royal : AIR1944Mad259 , while observing that Santok Chand's case, ILR 46 Cal 432 : (AIR 1919 Cal 647), did not go, as was pointed out in the case of Jnanendra Nath Paramanick : AIR1939Cal701 , so far as to deny jurisdiction to Criminal Courts but had merely stressed the impropriety of the complaint rather than lack of jurisdiction of the court, held, on the facts of the case that as failure on the part of the Receiver to take out a license for a market was an act that was in excess of the powers of the Receiver, no permission was necessary. Obviously the wide proposition of law to the effect that all allegations of criminal offence would be indicative of excess of authority of the Receiver, as laid down in Khim Chand's case, ILR 52 Bom 898 : (AIR 1928 Bom 493), did not find favour with their Lordships, though reference was made to this case.
12. It may be argued that under the amended Calcutta Municipal Act a Receiver as well as an owner is liable to be sued or proceeded against and that this specific mention of the Receiver means an implied exception to the rule that the permission of the court is necessary. But liability to be proceeded against is distinct from obtaining prior leave or permission. A person may be liable under the law to be proceeded against but if any rule enjoins that before any proceedings can be started previous permission of the court, whose officer he is, is to be obtained, it does not follow that any exception to the rule is implied. Further, it is clear that no direct exception to the rule has been provided for. It is just possible that the addition of 'Receiver' in the amended Act is meant to obviate the difficulty that arose in view of the decisions (for example, in Fink's case, 7 Cal WN 706), of the court that the Receiver did not represent the owner of the estate for which he was a Receiver,
13. Prima facie the alleged offence was in connection with the duties of a Receiver as such. The Receiver was suddenly called upon to pay half-yearly a sum of Rs. 60/- for a license. This amount had not been claimed or realised before by the Corporation of Calcutta. Non-compliance on the part of the Receiver prima facie was for the benefit or protection of the estate, and it cannot be said that the Receiver was acting in excess of his duties as a Receiver far less in violation of these. Permission or leave of the court, therefore, in any case was necessary.
14. On a consideration of the facts of the case and the law on the subject we are of the opinion that the appeal should be dismissed and we order accordingly.
15. I agree