1. (March 30, 1917.)---These six Rules were issued at the instance of three petitioners Amrita Lal Bose, Hari Prosad Bose and Dasu Charan Neogi. These three persons, it is admitted, are the co-sharer owners of a Theatre known as the Star Theatre situated in Cornwallis Street in the town of Calcutta and each, it appears, takes an active part in the management thereof.
2. On the 2nd, 5th, 6th, 9th, 12th and 13th November the performance at this Theatre was continued beyond the hour of 1 a.m. Six prosecutions were, therefore, instituted against the petitioners, who in each case were convicted on admissions made on behalf of all by their authorised agent, and sentenced each to pay a fine of Rs. 20.
3. In each case an application was made to this Court on the 2nd of January 1917 and the six Rules now before us were issued, calling upon the Municipal Magistrate and the Chairman of the Corporation to show cause why in each case the sentences complained of should not be modified.
4. By Section 559 of the Calcutta Municipal Act, 1899, Clause (52), it is provided that the General Committee may make bye-laws for the regulation of theatres and other places of public resort, recreation or amusement.
5. In Section 561 it is next enacted 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. Of the bye-Jaws made by the General Committee under Section 559 (52), the 83rd provides with a certain exception which has no application here, that no performance shall be continued later than 1 A. m. The penalty is to be found in the 85th bye-law which says, 'Every person guilty of a breach of any of these bye-laws shall be punishable with fine which may extend to Rs. 20.'
6. Thus in each of the six Rules the only question is whether in view of the provisions of Section 561 of the Act the imposition of a fine of Rs. 20 on each of the three petitioners, i.e. of a fine or fines exceeding in the aggregate Rs. 20 is authorised by law.
7. This same question, I may now observe, arose in Criminal Revision No. 1215 of 1916. See Amrita Lal Bose v. Chairman of the Corporation, of Calcutta, 40 Ind. Cas. 312: 21 C. W. N. 1009: 26 C. L. J. 29: 18 Cr. L. J.---Ed. In that case the conviction was in respect of an offence committed by the same three petitioners on the 3rd of September 1916. The Rule then issued at their instance was obtained on the 1st of December and eventually came on for hearing on the 18th of January. The Judges (Chaudhuri, J., and myself) having differed in opinion the case was referred to Chitty, J., who in agreement with Chaudhuri, J., delivered judgmenton the 19th of February, holding that a fine or fines exceeding Rs. 20 in the aggregate were not permissible. When on the 13th March the present Rules came on for hearing before the Bench as now constituted, learned Counsel (Mr. K. N. Chaudhuri) appearing for the petitioners contended that we had no jurisdiction to hear them. This contention appeared to resolve itself into two branches, the first being that we were bound by the decision of Chitty and Chaudhnri, JJ., in Revision No. 1215 of 1916, That, however, is not so. On the 18th of January there was but one Rule, or case No. 1215, before the Court. No reference was made at the hearing to these later Rules, and in fact at that time the returns to these Rules and the explanation or statement which, under Section 441 of the Code, the Magistrate is entitled to submit, had not been received. No doubt it was open to the petitioners or to learned Counsel appearing on their behalf to apply that the hearing of the first Rule should be postponed until the later Rules could be heard with it. But this course was not taken and the only case heard on the 18th January and decided by Chitty and Chaudhuri, JJ., on the 19th of February was Criminal Revision No. 1215 of 1916. It cannot be questioned that any Divisional Bench of this Court may differ from any other Divisional Bench on a question of law and in these oases, the question involved being one of great public importance, we both felt that we ought not to follow the previous decision without further examination of the grounds on which it was based.
8. It was next contended that as one of the Judges composing the present Bench (i. e., myself; was one of the Judges who had' heard Revision No. 1215 on the 18th January and had then expressed an opinion contrary to the decision ultimately arrived at, the Bench so constituted had no jurisdiction to hear the present Rules. This appears to be a novel doctrine, which if given effect to would dislocate the business of this Court. An examination of the constitution of the Full Benches formed from time to time will show that an expression of opinion by a Judge on a question of law does not debar him from hearing and dealing with the same question on a subsequent occasion. I need refer only to the recent Full Bench which decided Criminal Revision No. 848 of 1916 Charu Chandra Mayumdar v. Emperor 37 Ind. Cas. 145, 21 C. W. N. 320: 25 C. L. J. 165: 18 Cr. L. J. 81: 44 C. 595 on the 4th of December last and to the Full Bench Queen-Empress v. Sri Chum Chungo 22 C. 1017: 11 Ind. Dec. (n. s.) 676, which on the 20th of December 1865 overruled the decision of Petheram, C. J., and Beverley, J., in the case of Prosonno Kumar Patra v. Udoy Sard 22 C. 669: 11 Ind. Dec. (n. s.) 446, decided on the 30th of April of that same year.
9. No doubt if learned Counsel appearing on behalf of the petitioners had felt genuinely embarrassed in his argument by the composition of the Bench, it was open to him to represent this to the Court and to apply with the courtesy due to the Bench that we should move his Lordship the Chief Justice to transfer these cases to some other Bench. To such an application so made we would have lent a ready ear. But this course was not taken, and to a claim advanced as of right, advanced too with unbecoming heat and discourtesy, we could not accede.
10. Having made his observations on the question of jurisdiction, learned Counsel next intimated that he did not propose to argue the matter further and on the merits, therefore, we have not had the benefit of his assistance.
11. We may now return to the question of law involved in the present Rules. Mr. Manmatha Nath Mukherjee, to whom we are much indebted, appearing for the Corporation, has placed before us all the authorities on which, so far as can be gathered, the petitioners rely. The following English cases have been referred to: Rex v. Clark (1777) 2 Cowp. 610: 98 E. R. 1267. Reg. v. Bean (1843) 12 M. & W. 39: 13 L.J. Ex. 33: 152 E. R. 1102: 67 R. R. 248, Reg. v. Littlechild (1871): 6 Q. B. 293: 40 L. J. M. C. 137: 24 L. T. 233: 19 W. R. 748. also Crepps v. Burden (1777) 1 Smith's L. C. 657: (Seventh Ed., P. 651) 2 Cowp. 640: 98 E. R. 1283. The only Indian authority cited in this connection was the case of Reg. v. Showdar Chenar 7 B. H. C. E. Cr. 39, but my attention has since been drawn to the case of Gungadhur Sahoo, In re 22 W. R. Cr. 9. In Beg, v. Showdar Ghenar 7 B. H. C. E. Cr. 39, decided in 1870, Westropp, C. J., elaborately discussed the earlier English cases, and following apparently the cases of Reg. v. Rowan McNaghten (1845) 9 Ir. L. R. 93, Reg. v. Bleasdale (1792) 4 T. R. 809: 100 E. R. 1314, Hardyman v. Whitaker (1849) 2 East 573: 102 E. R. 489 and Partridge v. Naylor (1596) Noy 52: 74 E. R. 1021: Moore (K. B.) 453: 72 E. R. 689: Goulds. 145: 75 E. R. 1054: Cro. Eliz, 480: 78 E. R. 731, held that on the language of Regulation XXI of 1827, Section 4, only one forfeiture of double the amount of the duty plus double the value of the opium in question had been incurred. It is not for me to question the decision of a Full Bench of the Bombay High Court on a Bombay Regulation, but it may be noticed that in the case of Reg. v. Vakhatchand 1 B. H. C. R. 50, an earlier Pull Bench consisting of six Judges of the same Court had taken the contrary view. For present purpose it is sufficient to observe that the Regulation under consideration in both the Bombay cases above referred to was of a date long prior to the enactment of the Indian Penal Code in 1860. Similarly the case of Gungadhur Sahoo, In re 22 W. R. Cr. 9. was decided on the language of Section 17 of Bengal Act VII of 1864, while the definition of offence (section 40 of the Code) was not extended to acts punishable under local or special laws until 1870 by Act XXVII of that year. Moreover, the decision in Gungadhur Sahoo, In re 22 W. R. Cr. 9, appears to have proceeded in part on the fact that the two persons convicted in each of the two cases then in question were master and servant and on the view that the custody of the servant (whom the Court acquitted) was the possession of the master.
12. In the view I take, the English cases, in so far as they discuss the distinction between offences single (or joint and indivisible) in their nature and offences several in their nature, are of no authority here in India.
13. But the general rule, and, in my opinion, the only general rule laid down in these cases, and also in the case of Reg. v. Showdar Ghenir 7 B. H. C. E. Cr. 39, is that in each case the question must be determined by the language of the particular Statute. That rule is equally applicable in England and in India.
14. Here, therefore, we have to construe Section 561 of the Calcutta Municipal Act, and that Act is again to be read in the light of Bengal General Clauses Act, I of 1899, and also in the light of certain sections of the Indian Penal Code which, as is well known, was intended to replace the preexisting Criminal Law.
15. It cannot, we think, be questioned that the breach of a bye-law made under the provisions of the Calcutta Municipal Act is a thing punishable under a special or local law. To things so punishable, Section 40 of the Code, as amended by Act XXVII of 1870, extends the provisions inter alia of Section 109 of the Code. Similarly Section 3, Clause (1) of the Bengal General Clauses Act, we may observe, provides that unless there is anything repugnant in the subject or context the word 'abet' shall have the same meaning as in the Indian Penal Code. Section 109 of that Code provides in substance that whoever abets any offence shall be punished with the punishment provided for the offence. Persons who in concert commit an offence are treated each as having abetted the other. That is the case here. The three petitioners, the co-sharer owners and managers of this Theatre, it has been found, combined to continue the performance on the nights in question beyond the closing hour. They acted in concert, and there is no suggestion that in keeping the Theatre open anyone or two of them acted in defiance of the wishes of the others.
16. In my opinion, therefore, having regard to the provisions of Sections 40 and 109 of the Indian Penal Code, they are individually liable to the full penalty provided for the offence.
17. Apart, however, from the sections of the Indian Penal Code which, in my opinion, are applicable and, therefore, must be applied, on the language of the section itself, I come to the same conclusion. The breach of a bye-law is an offence. The Section (section 561) provides in effeot that this offenoe ' shall be punishable with' fine which may extend to Rs. 20, There is nothing unique in this language. In Section 40 of the Indian Penal Code an offence is spoken of as a thing made punishable by' or ' punishable under the Code or a special or local law', as the case may be. Similarly, Sections 64 and 67 speak of 'offences punishable with fine' or ' imprisonment ' and so forth, but when we come to the operative or punitive sections punishment for each individual offender is provided. In this connection the Criminal Procedure Code and also some other special laws may be referred to. I need not, however, elaborate this argument. In my opinion when the section provides that the offence consisting in the breach of a bye-law shall be punishable with fine which may extend to Rs. 20, it means and provides that such offence in every individual offender guilty thereof is punishable to that extent.
18. The last contention put forward in the application of the petitioners is that they being joint owners of the Theatre in question are one person' for the purposes and within the meaning of the 83rd and 85th bye-laws.
19. This contention appears to be based on the Bengal General Clauses Act, Section 3, Clause 66 Fed 2140: 30 U. S. App. 90: 13 C. C. A. which says that unless there is anything repugnant in the subject or context, ' person '' shall include any company or association or body of individuals, whether incorporated or not. On this definition it may be that where rights are specially conferred or obligations specifically imposed upon the 'owners' of premises these three co-owners are for such purposes to be considered as one. But here the case appears to me to be different. A breach of this bye law, which consists in the continuance of a performance beyond a stated hour, may, I venture to think, be committed by the individual actor, the manager, the proprietor and by all aiding and abetting them in the continuance thereof. Further-under the definition on which reliance is placed three persons can be treated as one only when there is no repugnancy in the subject or context. Here and in Indian penal legislation in general, in my opinion, there is such repugnancy, and in further support of this view I should refer to Section 26 of the Bengal General Clauses Act, which provides inter alia that in the absence of express provision to the contrary Section 64 of the Indian Penal Code 'shall apply' to all tines imposed under any Bengal Act. Section 64 of the Code provides that in every case of an offence punishable with fine only, it shall be competent to the Court to direct that in default of payment the offender shall suffer imprisonment. No doubt in the case of Basanta Kumari Devi v. Corporation of Calcutta 11 Ind. Cas. 143: 15 C. W. N. 906: 12 Cr. L. J. 375, a Bench of this Court held that in the case of the bye-law then before them imprisonment could not be imposed. But with all respect to the learned Judges who so decided, I am unable to agree in the view which then found favour. Neither in that case nor in this does the Act or bye-law contain any express provision to the contrary, and I am, therefore, of opinion that that case was wrongly decided, and in this connection I may refer to the case reported as Lakmia, In re 18 B. 400: 9 Ind. Dec. (n. s.) 775. Further the case of Basanta Kumari Devi v. Corporation of Calcutta 11 Ind. Cas. 143: 15 C. W. N. 906: 12 Cr. L. J. 375, may be distinguished inasmuch as the Court was there dealing with a continuing breach.
20. The liability of the offenders to imprisonment would seem to negative the contention that three offenders can be held to constitute one 'person.'
21. To sum up, I am of opinion that when Section 561 of the Calcutta Municipal Act provides that a breach of a bye-law shall or may be punishable with fines which may extend to Rs. 20, it provides that the offence shall be so punishable in each and every individual offender, that bye-law 85 is, therefore, not ultra vires, and that three offenders cannot be considered to be one person within the meaning and for the purposes of the section and of the bye-laws now in question.
22. I am, therefore, of opinion that the present Rules should be discharged.
23. The question that arises in these Rules is whether the Magistrate had power to impose on each of the three petitioners the full penalty provided bylaw for the breach of a bye-law of the Calcutta Municipality. The same question arose recently when the same petitioners were convicted of a breach of the same bye-law, and it was held by Chitty and Chaudhuri, JJ., Teunon, J., dissenting, that the total amount of the fines imposed on the petitioners could not exceed the sum of Rs. 20, the full penalty provided for the offence, When these Rules came up for hearing, the learned Counsel for the petitioners contended that this previous decision was binding on us and we must make these Rules absolute and had no jurisdiction to do otherwise. He refused to assist us by arguing in support of these Ruins or in reply to the arguments of the learned Pleader for the respondent in support of our having jurisdiction. On this point, I think it unnecessary to add anything to the remarks of my learned brother, with which I entirely agree.
24. The offence of which the petitioners were convicted on their plea of guilty was breach of Bye-law No. 83 duly made by the General Committee of the Calcutta Municipality, under Section 559 (52) of the Calcutta Municipal Act, III (B. C.) of 1899. This bye-law is as follows:
25. 'Hour of closing Theatres. No performance shall be continued later than 1 a.m. unless with the particular permission of the Chairman for any particular occasion.' The penalty clause of these bye-laws made under Section 561 of the same Act is to the following effect:---'Every person guilty of a breach of any of these bye-laws shall be punishable (a) with fine which may extend to Rs. 20....' It is unnecessary to quote the remainder of the clause which relates to continuing breaches. To me it seems perfectly clear that under this penalty clause each of the petitioners who has committed a breach of Bye law No. 83 is punishable with a fine of Rs. 20. I will consider later the question whether this penalty clause is ultra vires. Assuming that it is not, I find myself unable to agree with my learned brother Chitty, J., that the dictum of Lord Mansfield in Rex v. Clark (1777) 2 Cowp. 610: 98 E. R. 1267, supports the contention of the petitioners in the present case. This case and o; her English oases on the point are discussed by Westropp, C. J., in Reg. v. Showdar Chenar 7 B. H. C. E. Cr. 39. He states: 'The English decisions would appear to show 37 Ind. Cas. 145, 21 C. W. N. 320: 25 C. L. J. 165: 18 Cr. L. J. 81: 44 C. 595, that if the penalty be imposed by an Act of the Legislature upon each person convicted, even where the offence would in its nature be single, or 22 C. 1017: 11 Ind. Dec. (n. s.) 676. if the quality of the offences be such that the guilt of one person may be distinct from that of the others, in either of these cases the penalties are several.' Now in Rex v. Clark (1777) 2 Cowp. 610: 98 E. R. 1267. Mr. Buller in support of the Rule argued 'only one penalty can be recovered.' For it is not said 'that every person offending shall for every such offence forfeit' but 'if any person or person, shall, etc., the party or parties shall for every such offence forfeit and lose 40 ' Lord Mansfield in his judgment did not discuss that argument, but discharged the Rule on the ground that the offence in that case was in its nature several and not single. There is nothing in his judgment to contradict the first portion of Lord Westropp's Concise statement of the effect of the English decisions, namely, that even where the offence would in its own nature be single, the penalties are serveral if the penalty be imposed by an Act of the Legislature on each person convicted. I have considered the English cases referred to in Reg. v. Showdar Chenar 7 B. H. C. E. Cr. 39 and cannot find any of them contradict the rule that where the enactment makes every person' offending liable to the penalty, separate penalties can be imposed on each person. The only case that seems at all to support the petitioners' contention Partridge v. Naylor (1596) Noy 52: 74 E. R. 1021: Moore (K. B.) 453: 72 E. R. 689: Goulds. 145: 75 E. R. 1054: Cro. Eliz, 480: 78 E. R. 731, in which in spite of the words of the Act making every person offending' liable to forfeit 5, it was held that but one 5 shall be forfeited, in an action against three persons. But as pointed out by Westropp, C. J., at pages 46 and 47 of the report above mentioned Reg. v. Showdar Chenar 7 B. H. C. E. Cr. 39, this is a very peculiar case and can be distinguished on the ground that this was a civil action by a private person and the penalty was of the nature of compensation rather than fine.
26. The decision in Reg. v. Showdar Chenar 7 B. H. C. E. Cr. 39 itself does not help the petitioners. In that case it was held that only one penalty was leviable because the words of the enactment infringed (Regulation XXI of 1827, Section (4) were not every person shall forfeit' but 'any person or persons' (page 45). It was also pointed out in the judgment of Couch, C. J., (page 40) with which Westropp, C. J., concurred that the penalty not being a fixed sum but varying according to the quantity of opium kept or concealed is more consistent with its being a single one than with there being several penalties. I draw special attention to this remark, because in the only case of this Court which I have been able to find containing a reference to Reg. Showdar Ghenar 7 B. H. C. E. Cr. 39, namely, Gungadhur Sahoo In re 22 W. R. Cr. 9, that decision was approved on the ground that in that case also the sum in which the parties were liable to be fined was not a fixed one, being liable to vary according to the quantity of contraband salt found in their possession.
27. I now come to the question whether this penalty clause of the bye-laws is ultra vires. The section of the Calcutta Municipal Act under which it was made is Section 561, which, excluding the portion relating to a continuing breach, runs as follows: 'in making a bye-law under Section 559 the General Committee may provide that a breach of it shall be punishable (a) with a fine which may extend to Rs. 20....'
28. I cannot find in these words any restriction preventing the General Committee from providing, as they have done, that every person guilty of the breach of a bye-law shall be punishable with a fine which may extend to Its. 20. Whatever may be the law in England, it appears that the Indian Legislature has made no distinction between the punishment of an offence and the punishment of an offender. The expression punishment of an offence must connote the punishment of an offender. One cannot hang a murder or imprison a theft. The Indian Penal Code refers indiscriminately to offenders being punishable and offences being punishable. For example see Sections 59 and 60 for the former expression and Sections 62 and 64 for the latter. The words 'offence punishable' are a convenient and compact expression for longer phrase such as 'an offence for which a person who has committed the same is punishable.' Another example of the use of the expression offence punishable being used in this sense may be found in the Bengal Excise Act, 1909. Section 46 of that Act provides for the punishment of, persons and Section 56 refers to 'any offence punishable under Section 56.' Also in Section 40 of the Indian Penal Code it is stated that 'the word offence denotes a thing made punishable by the Code.' But all the operative sections of the Cede by which offences are made punishable commence with the word 'whoever' and expressly provide for the punishment of the person committing the offence. There is nothing in the Calcutta Municipal Act to suggest that the Legislature, when it empowered the General Committee to make a breach punishable', used the words in any other sense than that in which the words offence punishable' are used in the Penal Code. The words used are capable of easy interpretation and it is, therefore, unnecessary to consider the intention of the Legislature. If it were, I should hold that it was highly improbable that they intended to prevent the imposition of more than one sum of Rs. 20 for a breach of this bye-law irrespective of the number of persons who committed the breach. The number of convictions of the present petitioners shows that a single fine of this amount is insufficient as a deterrent. Unless more persons than one can be separately punished for these offences, it obviously pays the owners of any popular theatre to treat the bye-law with contempt. For these reasons I am of the opinion that the penalty clause under which the petitioners have been separately convicted is intra vires of Section 561 of the Calcutta Municipal Act.
29. The only other point to be considered is whether the three petitioners constitute a single person and are liable to a single fine on this account. It appears from the evidence of their agent on whose admission they were convicted that as well as being partners, they each take an active part in the management of the Theatre. The first petitioner is the dramatic director, the second is the business manager, and the third sells tickets. On this I would hold that they have been convicted for their individual acts and not as a body of individuals forming a person within the definition of that word given in Clause (32) of Section 3 of the Bengal General Clauses Act, I (B. C.) of 1899. But in any case that definition cannot apply in the present Act, since the subject of a penal clause is repugnant to such an interpretation. I am unable to agree with the decision of a Bench of this Court in Basanta Kumari Devi v. Corporation of Calcutta 11 Ind. Cas. 143: 15 C. W. N. 906: 12 Cr. L. J. 375, (15), that imprisonment cannot be enforced under Section 64, Indian Penal Code, for non-payment of a fine for an offence under the Calcutta Municipal Act. Section 40 of the Indian Penal Code and Section 26 of the Bengal General Clauses Act seem to me to clearly apply, But this case can be distinguished on the ground that the Judges deciding it only dealt with the question of a daily-fine for a continuing breach and expressly held it unnecessary to discuss the effect of the General Clauses Act and made no reference to Section 40, Indian Penal Code, Since these offences are punishable with imprisonment in default of payment of fine, the three petitioners cannot be treated as a single person as the imprisonment could not be apportioned.
30. But for the recent decision in the similar case referred to at the commencement of my judgment I would discharge these Rules, but as that cannot be done the case must be referred for decision to a Full Bench.
31. By the Court.---For the reasons given in our separately recorded opinions we are agreed that the six cases before us should be referred, under Part II, Chapter V, rule 5 of our rules, to a Full Bench for such orders as to such Bench may seem fit.
32. The question for the determination of the Full Bench we state as follows:
Was the case of Amrita Lal Bose v. Chairman of the Corporation of Calcutta 40 Ind. Cas. 322: 26 C. L. J. 29: 21 C.W.N. 10091 18 Cr. L. J. 674. being Criminal Revision No. 1215 of 1916, rightly decided?
33. On the reference coming before the Full Bench.
34. Mr. Norton (with him Mr. K. N. Chaudhnri and Babu Hemendra Nath Sen, for the Petitioners.)---I shall support the judgment of the 3rd Judge Mr. Justice Chitty, so my learned friend on the other side should first begin the case and submithis arguments against the decision of Mr. Justice Chitty.
35. The Hon'ble Mr. B. C. Mitter, (Offig. Advocate-General, with him Babu Manmatha Nath Mookerjee, for the Opposite Party.)---The practice and rules of the Court are that one who attacks the judgment of the Judges referring a case to the Full Bench ought to begin.
Mr. Norton, J.
36. If your Lordships want me to begin, I have no objection. (After stating the facts of the case), the offence committed by the three petitioners is a single offence, and the punishment which could be awarded under the Municipal Bye-laws Nos. 83 and 85 cannot exceed the maximum of Rs. 20. If there are more persons than one committing a breach of the bye-law, the offence is not aggravated in the least. The offence and its consequence remain just the same, whether it is committed by one person or ten persons jointly. The public health is not affected more by the fact that many persons took part in continuing the theatrical performance after 1 a.m. The object of the Municipal Law is to punish the offence and not the offenders. Again the performance of the Theatre up to I a.m., was not prohibited by the bye law. So the persons who were responsible for the performance could not be regarded as offenders in any sense up to 1 a.m. in the night. But a minute after 1 a. m., all of them would become offenders, if it is contended on the other side that the object of the bye-law is to punish the offenders and not the offence. The persons who organised the performance could not stop it at once after 1 a.m., if any of the organisers objected to the discontinuance. Hence it would be unreasonable to hold that each of the offenders should be fined, with a fine which may extend to Rs. 20. Moreover, the persons who being associated together carry on a theatre should be regarded as a single person according to the definition of the General Clauses Act, So that if you want to punish the person, you must punish the association or the Company as an unit and not each of its members individually.
37. Refers to Section 559, Clause 52, of the Municipal Act and Section 628, the Bengal General Clauses Act, the Municipal Bye-laws Nos. 83, 84 and 85 and reads the judgment of Mr. Justice Chitty.
38. The judgment of Mr. Justice Chitty is final under Section 429, Criminal Procedure Code, and these oases ought not to have been referred to the Full Bench at all, specially when these cases are intimately connected with the case which was decided finally by the 3rd Judge Mr. Justice Chitty.
39 Why should a person who commits a breach of the bye-law, get a lesser punishment if he associates with himself several other persons as his accomplices P Should not the latter at any rate be regarded as abettors
40. No. You cannot read into the Municipal Act the provisions of the Indian Penal Code. The powers of the Municipal Magistrate are limited by the Municipal Act, and he can-not punish a person as abettor when there is no such provision in the Municipal Act. I submit that the proper construction of the bye-law is that by it a breach is punishable as an offence and not the persons individually who commit the breach. Refers to Rex v. Clark (1777) 2 Cowp. 610: 98 E. R. 1267. Reg. V. Dean (1843) 12 M. & W. 39: 13 L.J. Ex. 33: 152 E. R. 1102: 67 R. R. 248, Reg. V. Littlechild (1871): 6 Q. B. 293: 40 L. J. M. C. 137: 24 L. T. 233: 19 W. R. 748, Reg. v. Showdar Ghenar 7 B. H. C. E. Cr. 39, Gungadhar Sahoo, In re 22 W. R. Cr. 9, Reg. v. Vakhatchand 1 B. H. C. R. 50, Lakmia, In re 18 B. 400: 9 Ind. Dec. (n. s.) 775, Crepps v. Burden (1777) 1 Smith's L. C. 657: (Seventh Ed., P. 651) 2 Cowp. 640: 98 E. R. 1283. Basanta Kumari Devi Corporation of Calcutta 11 Ind. Cas. 143: 15 C. W. N. 906: 12 Cr. L. J. 375.
41. If your Lordships think that the Bye-law No. 85 means that each of the persons commit-ting the bread! is punishable with a fine which may extend to Rs. 20, then I submit that the Municipal Corporation bad no power under the Municipal Act to frame such a bye-law. Therefore it is ultra vires.
42. The Hon'ble Mr. B. C. Mitter.---It is curious to see that when Mr. Justice Chitty comes to the question of fine in his judgment, he thinks that each of the persons should pay a portion of the fine. If the offence is punishable and not the offenders, the Court bad no power to say that each of the persons should pay a portion of the fine. If A alone commits the breach he might be fined Rs 20; if he is shrewd enough he will take nineteen Others as his accomplices, and 'he result will be that when the fine of Rs. 20 is imposed for the breach, each of the offenders will escape by paying a fine of Re. 1 only.
43. This is an absurd position. It leads to the result that the more are the persons who take part in committing the breach, the less is the punishment each of them is likely to suffer. I submit that each of the persons commuting the offence is punishable. Reads Section 559, Clause 2, and Sections 21 and 26, Bengal General Clauses Act.