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Kristo Lall Mallik Vs. Chairman of Hooghly Chinsurah, Municipality - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in37Ind.Cas.515
AppellantKristo Lall Mallik
RespondentChairman of Hooghly Chinsurah, Municipality
Cases ReferredKheroda Prosad Paul v. Chairman of
Excerpt:
bengal municipal act (iii b.c. of 1884), sections 44, 45, 230, 271, 353 - sanction for prosecution by public authority, whether to be under seal--report of outdoor inspector recommending prosecution signed by chairman, whether complaint--notice against accused by vice-chairman, how validated. - .....second point is that the notice, exhibit 1, against the accused was issued on the authority of the vice-chairman and that there is no evidence that the latter derived authority from the chairman. the learned judge has referred to sections 44 and 45; but he has not directly referred to the proviso to section 45. here it may be assumed that there was no written order delegating to the vice-chairman all or any of the duties or powers of a chairman as defined in the act, which would cover the particular order made by the vice chairman in this case. the proviso, however, to section 45 says: 'provided that nothing done by the vice-chairman which might have been done under the authority of a written order from the chairman, shall be invalid for want of or defect of such written order, if it be.....
Judgment:

1. This is a reference by the learned Sessions Judge of Hooghly in the matter of one Kristo Lall Mallik, who was prosecuted under Section 271 of the Bengal Municipal Act for haying disobeyed a requisition under Section 280 and sentenced to pay a fine. The learned Sessions Judge recommends that the conviction and sentence be set aside on two grounds, which he admits are technical. The first is that the prosecution was undertaken without the consent of the Commissioners. He concedes that, under Section 44, the Chairman could give such consent. It appears from Exhibit 3 in the case that the report of this offence was made by the outdoor inspector; that the columns of that form were duly filled up; and that in the remarks column occurred this remark: 'submitted to the District Magistrate, Hooghly, with a recommendation to prosecute the party under Sections 220, 271 of the Bengal Municipal Act.' That is signed by Mohendra Chandra Mitter, Chairman, Hooghly-Chinsurah Municipality. The learned Judge thinks that, because this document bears an 8 anna stamp, it must be regarded as a petition of complaint and that the Chairman of the Municipality was merely in the position of the complainant. We do not so regard it. Section 353 says that no prosecution for an offence under this Act shall be instituted without the order or consent of the Commissioners. This is clearly an order or consent by the Chairman as representing the Commissioners. It does not appear that the Chairman ever went before the District Magistrate : the complainant who appeared before him was the outdoor inspector : and he gave evidence as such complainant, as appears from his deposition. We have been referred on this point to a decision of this Court in Rasul Baksh v. Municipal Board of Chopra 15Ind Cas. 796 : 16 C.W.N. 934 : 13 Cr. L.J. 524. in which the Judges are reported to have remarked: 'The only evidence of sanction of prosecution by a public authority is a writing under the seal and signature of that authority,' We have not been told of any enactment which requires a sanction for prosecution to be under seal. The facts of that case were somewhat different from the facts of the present case; but, so far as the seal was held to be necessary, we are unable to agree with that in the absence of any legislative enactment to that, effect. The expression there sanction of prosecution' is not quite in the wording of Section 353, which speaks of the order or consent.' Exhibit 3 amounting to such order or consent in writing by the Chairman is, we think, sufficient.

2. The second point is that the notice, Exhibit 1, against the accused was issued on the authority of the Vice-Chairman and that there is no evidence that the latter derived authority from the Chairman. The learned Judge has referred to Sections 44 and 45; but he has not directly referred to the proviso to Section 45. Here it may be assumed that there was no written order delegating to the Vice-Chairman all or any of the duties or powers of a Chairman as defined in the Act, which would cover the particular order made by the Vice Chairman in this case. The proviso, however, to Section 45 says: 'Provided that nothing done by the Vice-Chairman which might have been done under the authority of a written order from the Chairman, shall be invalid for want of or defect of such written order, if it be done with the express or implied consent of the Chairman previously or subsequently obtained.' That the act of the Vice-Chairman was done with the express consent of the Chairman subsequently obtained is clear in this case from the order to which we have referred in Exhibit 3. It is clear that the Chairman must have given consent to the act of the Vice-Chairman; or he could never have written that order which has been designated a sanction to prosecute. On this point we have been referred to the case of Kheroda Prosad Paul v. Chairman of the Howrah Municipality 20 C. 448 : 10 Ind. Dec. (N.S.) 303. But the facts there were very different from the facts in the present case. There was no evidence of any such consent on the part of the Chairman as appears here. All that there was in that case to justify the order was a verbal order given some months before by the Chairman to the Vice Chairman to institute all prosecutions under Section 353.

3. We think, therefore, on the clear reading of the Act that the two points which the learned Judge has put forward cannot be supported. His recommendation to revise the proceedings is rejected.


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