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The Chairman of the Howrah Municipality Vs. Barada Prasanna Pain - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in55Ind.Cas.731
AppellantThe Chairman of the Howrah Municipality
RespondentBarada Prasanna Pain
Excerpt:
calcutta municipal act (iii b.c. of 1899), sections 578, 631 - pleader's profession carried on without license--offence--limitation for prosecution--pleader's profession, carrying on of, what constitutes. - .....he was not actullay conducting a case every day in that year. but for the purpose of carrying on a pleader's profession it is not necessary that he should every day conduct a case or attend or address the court. for instance, the facts of keeping an office for the purpose of receiving his clients, giving them advice or being generally open to engagement as a pleader, will all constitute the carrying on of a pleader's profession. giving the statement of the accused its proper effect, it seems to me to amount to an unqualified admission that he carried on his profession throughout the year 1917-18. in this view of the case, i am of opinion that the prosecution is not barred.4. we accordingly convict the accused of an offence under section 578 of the calcutta municipal act and impose upon.....
Judgment:

Shamsul Huda, J.

1. This is an application against an order of acquittal. As a rule this Court is reluctant to interfere in such cases. But as this is not a criminal case in the strict sense of the term, as it concerns the interests of a public body, and as it is, we understand, one of several cases of the same nature which are now pending in the Court below, we have thought it necessary to examine the case on its merits.

2. The prosecution was against a Pleader of the Howrah Court, for practising as a Pleader without taking a license, under Section 578 of the Calcutta Municipal Act, which has been extended to the Howrah Municipality. The Magistrate acquitted the accused on the ground that under Section 631, Clause (1), of the Act which is also extended to Howrah, the complaint should have been made within three months of the date of the commission of the offence. The learned Magistrate says that the Pleader practically admitted that he had exercised his profession in 1917-18. If that be so, he was guilty of an offence against the provisions of Section 578 on the last date of that year, i.e., on the 31st March 1918, and the complaint lodged within three months of that date was clearly not barred under Clause (1) of Section 631, and to save limitation it was not necessary to invoke the aid of Clause (2) which was not in force in Howrah when the prosecution was commenced. But Clause (2) has the effect of extending and not shortening the period of limitation provided by Clause (1).

3. The statement that the accused made before the Magistrate was that he carried on his profession in the year 1917-18, but not on every day of the year. I do not think that this is quite a straightforward statement. If he had carried on his profession in 1917-18, it is not intelligible to me how he could have exercised his profession on particular days of that year only. He perhaps meant that he was not actullay conducting a case every day in that year. But for the purpose of carrying on a Pleader's profession it is not necessary that he should every day conduct a case or attend or address the Court. For instance, the facts of keeping an office for the purpose of receiving his clients, giving them advice or being generally open to engagement as a Pleader, will all constitute the carrying on of a Pleader's profession. Giving the statement of the accused its proper effect, it seems to me to amount to an unqualified admission that he carried on his profession throughout the year 1917-18. In this view of the case, I am of opinion that the prosecution is not barred.

4. We accordingly convict the accused of an offence under Section 578 of the Calcutta Municipal Act and impose upon him a fine of Rs. 25 (Rupees twenty-five only), being twice the amount which he was liable to pay for his license.

Richardson, J.

5. I agree. I have only one word to add. As to the ground on which the Magistrate acquitted the petitioner, if we read Section 578 apart from the provisions of Section 631, the offence thereby created lies in the person exercising a profession after the 1st of July in any year without having the prescribed license. The offence, therefore, is committed, and the law is broken on the first day on which the profession is so exercised. If the profession is so exercised on subsequent days, there may be a doubt whether a separate offence is committed on each day or whether it is all one continuing offence. But it is not necessary to decide that on the assumption that it is one offence, the offence begun on the first day continues to be committed and the law continues to be broken on each subsequent day.

6. Then if we turn to the first clause of Section 631, that clause limits the time within which a prosecution for such an offence may be commenced. Complaint must be made before a Magistrate within three months next after the commission of the offence. If the profession is exercised on one day only, the prosecution must be commenced within the following three months. If it is exercised on a number of days, whether the offence is a continuing one or not, the prosecution must be commenced within three months of the last of such days.

7. It is perfectly (rue that under Clause (2) of Section 578, when an offender has once been convicted and paid the fine imposed upon him, the offence is purged and the payment of the fine is to be taken in full satisfaction of the demand on account of such license. The offender who has paid his fine is thereafter in the same position as a person who has taken out his license in proper time. But it by no means follows from that provision that the prosecution must be commenced within three months of the first of a number of days on which the offender practises without a license. The offence, as I have said, is committed afresh or continues to be committed on every day on which he practises without a license and the prosecution may be commenced within three months of the last of such days. The contention of the learned Pleader that there was only one offence, an offence complete on the first day, is wide of the mark.

8. The other question which arises is a pure question of fact, whether the petitioner did or did not practise up to the end of the Municipal year, that is, up to the 31st March 1918. I entirely agree in what my learned brother has said on this part of the case. The Magistrate has, in effect, come to the same conclusion when he says the petitioner admitted or practically admitted that he exercised his profession during 1917 and 1918. That being so and the prosecution having been started within three months of the 31st March 1918, it was not barred by the rule of limitation prescribed by the first clause of Section 631.

9. We understand that Clause (2) of Section 631 has now been extended to the Howrah Municipal area and consequently there will be no difficulty such as has arisen in this case in future.


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