Lancelot Sanderson, C.J.
1. This is a Rule calling upon the Chairman of the Corporation and the Municipal Magistrate to show cause why the order complained of should not be set aside or why such other order should not be made in the matter as may seem fit to this Court. The order complained of is dated the 20th of November 1919, and by that order the Municipal Magistrate sentenced the petitioner to a daily fine of eight annas for 30 days from the 16th of May 1916, that is, Rs. 15 in all, under Section 575 read with Section 299 of the Calcutta Municipal Act. III of 1899.
2. The facts of this case are to my mind exceptional, and the decision at which we have arrived depends upon the exceptional facts of this cage and should not be taken as covering any other case in which the facts are different.
3. It appears that the petitioner was convicted on the 28th of January 1916 for not having complied with the requisition which was served upon him in May 1915, requiring him to do certain things in connection with his premises and relating to the drainage therein: and he was fined Rs. 2. Apparently he did not even then comply with the requisition and on the 15th of August 1916 a fresh complaint was made against him. The charge was for failing to comply with the requisition under Section 299 of the Act requiring him within 60 days to make a house drain emptying into the sewer and to do other matters '(after being convicted and fined Rs. 2 on the 28th January 1916).' These proceedings were taken under Section 575 of the Act. On the 29th of August the accused's son appeared and paid he was making arrangements for departmental execution of work. The order war: ''Two weeks' time allowed. Fix 12th September 1916.' Then on the 12th of September proceedings were stayed for one month at the instance of the prosecution. Apparently, negotiations were then entered upon between the petitioner and the Municipal authorities, the petitioner alleging that he was too poor to carry out the requisition. It is not necessary for ma to go into the details of the negotiations, but they seem to have lasted for a very long time. Eventually, they feel through and nothing came of them. Then on the 25th February 1919, more than two years after the proceedings had been stayed, an application was made to the Municipal Magistrate. I will read the application, because the wording of it to my mind is somewhat unusual:
The Prosecutor prays that Case No 2580 in which proceedings were stayed in this Court on the 12th of September 1916 may be revived as the accused has not complied with the requisition of notice served. Proceeding was stayed in the case pending the disposal of the party's application for departmental execution of work, as the application for departmental action has been refused the present application for revival of proceedings is being made.' Upon that application the Magistrate made this order' 'Case received, Issue summons for 16th October 1919. Inform Sub Inspector of the date.' On the 18th of September the application was granted and the case was revived. Then on the 20th of November, as I have already stated, the petitioner was convicted and the period for which he was fined was for 30 days commencing from the 16th May 1916. The Municipal Magistrate stated in his judgment 'the period for which the accused has been prosecuted is mentioned as the 29th of January to the 4th of August, but as the complaint was filed on the 15th of August I cannot take into consideration the days previous to the 16th of May.' Presumably he was acting under the provisions of Section 631 and he was of opinion that he could not deal with any period more than three months prior to the 15th of August 1916.
4. The Rule that has been obtained has supported upon the grounds, first, that inasmuch as the proceedings were stayed on the 12th of September 1916 for one month at the instance of the prosecution and as at the expiration of that one month nothing was done by the complainant, and as he did not appear at the expiration of that month it was the duty of the Magistrate under Section 247 of the Criminal Procedure Code to acquit the accused unless the Magistrate thought proper to adjourn the hearing of the case to some other day. The Magistrate did not adjourn the case and the complainant did not appear at the end of the month. It was further argued that having regard to the great delay which had occurred from the date when the proceedings were stayed until the application for revival (namely, from the 12th September 1916 to the 25th of February 1919), it must be assumed that those proceedings were abandoned and that the application for revival on the 25th of February, if it is to be regarded at all as a competent proceeding, must he regarded as a fresh complaint. I prefer to rest my judgment upon the second ground, namely, that having regard to the special circumstances of this case the very great delay that has occurred, namely, that from the 12th of September 1916 till the 25th February 1919 nothing was done with regard to the proceedings, it must be taken that those proceedings were abandoned, and, consequently I am of opinion that the order of the Municipal Magistrate convicting the petitioner of offences committed from the 16th of May and 30 days afterwards, which conviction was made on the 20th November 1919, was invalid.
5. This Rule must, therefore, be made absolute.
6. The fine, if paid, must be refunded.
7. I agree in the order proposed. 1 should like to add that such reluctance as I may feel in interfering in this case springs from the fact that it was the petitioner who in the first instance caused the proceedings under Section 575 to be held in abeyance.