1. In the first case the petitioner, who is an actor, has been fined Rs. 10 for continuing a theatrical performance later than 1 a.m. on the 31st March last in breach of the Theatre Bye-laws, Rules 33 and 85 of the Calcutta Municipal Act. A Rule was issued by this Court. The grounds urged were (1915) 2 K.B. 49 : 84 L.J.K.B. 649 : 112 L.T. 519 : 79 J.P. 238 : 13 L.G.R. 541 : 31 T.L.R. 138 that bye-law 85 is ultra vires, (1911) K.B. 445 : 80 L.J.K.B. 141 : 103 L.T. 760 : 75 J.P. 53 : 9 L.G.R. 79 : 27 T.L.R. 141 that the abetment sections of the Penal Code do not apply to an offence treated by a bye-law framed under the Calcutta Municipal Act.
2. In the second case both the petitioners are actors and have been fined Rs. 20 each for committing a similar breach of the same bye-laws, and a Rule was issued on the same grounds. Both the matters have been heard together.
3. Under Section 559, Sub-Clause (52), of the Calcutta Municipal Act III of 1899, the General Committee of the Municipality is empowered to make bye-laws for the regulation of theatres and other places of public resort, recreation or amusement. Section 561 lays down that 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 Rs. 20 in some cases and to Rs. 10 in others. Under the power so given the following bye-laws have been framed:
4. Hour of closing Theatres: Bye-law 82: 'No performance shall be continued later than 1 a.m. unless with the special permission of the Chairman for any particular occasion.'
5. The Penalty Clause is Bye-law 85:
'Every person guilty of a breach of any of the bye-laws shall be punishable' as provided in Section 561 (quoting the words of that section).
6. It is contended that Section 561 is ultra vires, as it creates an offence and is not in the nature of a ministerial act and the Bengal Legislature has no power to delegate such authority to a Municipality or its General Committee, that there is no power under the bye-law to regulate the time of a performance, that is to say, there is no authority to fix a time limit. It is also argued that the bye-law as framed is unreasonable. Reliance has been placed upon Halifax Theatre de Luxi v. Gledhill(1915) 2 K.B. 49 : 84 L.J.K.B. 649 : 112 L.T. 619 : 79 J.P. 238 : 13 L.G.R. 541 : 31 T.L.R. 138 and also London County Council v. Bermondsey Bioscope Co. (1911) K.B. 445 : 80 L.J.K.B. 141 : 103 L.T. 760 : 75 J.P. 53 : 9 L.G.R. 79 : 27 T.L.R. 141 in support of the last point. We are unable to accept these contentions. The first case above cited does not support the view that a time limit may not be fixed, and we do not find anything unreasonable in such a bye-law. 24 and 25 Vict. c. 67, Section 22, lays down the extent of the power of the Governor-General to make laws and regulations'. Section 42 of the same Statute lays down the extent of the powers of Governors of Bombay and Madras in Council to make laws and regulations. Section 44 provides that the Governor-General may establish Councils for making laws and regulations in the Presidency of Fort William in Bengal. By a proclamation in 1862 such Council was established in Bengal. The Statute as extended gives ample authority to the Government of Bengal to pass such an Act as the Calcutta Municipal Act and to empower the General Committee of the Municipality to frame bye-laws. It is clear that the General Committee has clear authority to make breaches of the bye-laws punishable. The power of the Government is very clearly put in Empress v. Burah 4 C. 172 (P.C.) : 5 I.A. 178 : 3 C.L.R. 197 : 3 Sar. P.C.J. 834 : 3 Suth.P.C.J. (sic) : 2 Shome L.R. 63 which holds that when the Indian Legislature has power expressly limited by the Act of the Imperial Parliament which created it, it can, of course, do nothing beyond the limits which circumscribe these powers. But, when acting within the limits, it is not in any sense an agent or delegate of the Imperial Parliament, but has, and was intended to have, plenary powers of Legislation, as large, and of the enamel nature, as those of Parliament itself. Where plenary powers of Legislation exist as to particular subjects, whether in an Imperial or in a Provincial Legislature, they may be well exercised, either absolutely or conditionally. Legislation conditional on the use of particular powers or on the exercise of a limited discretion, entrusted by the Legislature to persons in whom it places confidence, is no uncommon thing, and in many circumstances it may be highly convenient. Their Lordships refer to the British Statute Book as abounding with examples of it and say there is nothing in the Statute which limits such power so far as the Indian Legislature is concerned. In this connection the Public Health Act of 1875, 33 and 39 Vict. Order 55, Section 182, the Municipal Corporation Act of 1882, 45 and 46 Vict, c., 60, Section 23, the Local Government Act of 1888, 51 and 52 Vict. Order 41, Section 16, may be referred to. Similar penalties as those now under consideration are provided therein.
7. In Hodge v. Rej. (1884) 9 App. Cas. 117 : 53 L.J.P.C. 1 : 50 L.T. 301 their Lordships lay down that it is not a question of an application of the principle 'delegatus non potest delegare' in a similar case and that within the limits of subjects and area. the local Legislature is supreme and has the same authority as the Imperial Parliament would nave had under like circumstances to confide, to a Municipal institution or a body of its own creation, authority to make bye-Jaws or resolutions as to subjects specified in the enactment, and with the object of carrying the enactment into operation and effect. They also held that penalties might be properly imposed.
8. A similar question arose in Powell v. Apollo Candle Co. (1885) 10 App. Cas. 282 : 54 L.J.P.C. 7 : 53 L.T. 638 in which their Lordships have held that a Colonial Legislature is not a delegate of the Imperial Legislature. It is restricted in the area of its powers, but within that area it is unrestricted and not acting as an agent or delegate. We have no hesitation in holding that the bye-laws and the penalty provided in the Calcutta Municipal Act are not ultra vires.
9. Next comes the question of abetment, It is argued that a breach of the bye law is an offence as defined in Section 40 of the Indian Penal Code, but that the Calcutta Municipal Act is not a special or local law under that section, We are unable to accept that view The Calcutta Municipal Act is a special and local law and the provisions of Section 40 apply to abetment of the offence which is thereby made punishable.
10. It is next argued that Section 628 of the Calcutta Municipal Act alone gives powers to the Local Government to appoint one or more Magistrates for the trial of offences against the Act, and the rules, bye laws and regulations made thereunder, and as abetment has not been specifically referred to in Section 561, the Magistrate so appointed is not empowered to try cases of abetment, and since the conviction of the petitioners is upon the abetment sections of the Penal Code taken with the offence under the bye-law it is unsustainable in law. We are unable to accept this contention. The Magistrate who tried the petitioners in this case is not only a Municipal Magistrate but also a Presidency Magistrate, and he has ample power to deal with the matter. It is difficult to avoid the conclusion that if a breach of the bye-law is an offence as defined in the Penal code, Sections 109 to 114 made the abettors also punishable. The actors who take part in a performance after 1 A.M. seem to us to be in the position of principals and the question of abetment hardly arises, but even if they be considered as abettors, we are of opinion that they have been justly convicted The observations referred to in Amrita Lal Bose v Chairman of the Corporation of Calcutta 40 Ind Cas. 322 : 26 C. L. J. 29 : 21 C.W.N. 1009 : 18 Cr.L.J. 674 are in the nature of obiter, as the question was not before the Court at that time. We Think that the grounds upon which the Rules were issued fail and, therefore, they ought to be and are accordingly discharged.