Bhagwangir Mukundgir and Another vs State

Sanghi, J.—On 27th September 1948, the Magistrate, first alas? at Khaegaon, convicted the two petitioners u/s 18, lndore Penal Code, read with notification no. SO dated 12th October 1920 and also u/s 74, District Municipalities Act. and sentenced them each to para fine of US. 25. Against this order of conviction and sentence they filed a revision petition in the Court of the Sessions Judge, who has made recommendation to this Court that the petition Bhould be allowed.

The act of the two petitioners which constitute the offence is that their father Mukundgir died on 37th May 1946 and they buried him in close proximity to their dwelling house in Khate-gaon. The Notification referred to above was issued by the then Home Minister to the Government of His Highness the Maharaja Holkar in the Holkar Government Gazette dated 18th ootober 1930 which reads thus:

It is, therefore, hereby ordered that any person burying or burning the dead at a place other than the places meant for the dispoeal of the dead or abetting in moh all will be dealt with in accordance with the provisions of Section 183, lndore Penal Code.

The other section under which also the petitioners have been convicted is a. 71, lndore District Municipalities Act. The section runs thus:

Whoever buries or barns or causes or permits to be buried or burnt any corpse in any place other than that set apart by the Committee for the purp se shall be punishable with fine which may extend to Ra. 50.

The learned Sessions Judge came to the conclusion that since Section 71, District Municipalities Act, was introduced into the Act in the year 1939 it should be deemed by implication to repeal the order of the Home Minister promulgated in October 1920, I am unable to accept this. A, later legislation on the same subject does not necessarily repeal a previous one unless there be a good reason for it, for example, inconsistency between the two. There is no inconsistency here. The two provisions, so far as definition of the offence is concerned, are practically identical. Tb learned Magistrate erred in convicting the petitioners under both the provisions of law. For a single Act. a person can only be convicted under the one of the two laws. He should have selected the law under which he chose to convict the petitioners,

The petitioners were prosecuted by the? police, u/s 71, District Municipalities Act. and Section 188, lndore Penal Code. The Court could not have taken cognizance of an offence punishable u/s 71, District Municipalities Act. except on the complaint of the President or any person authorised either generally or specially by the Municipal Committee ; see Section 89 of the Act. No complaint was made by the President of the Municipal Committee or under his authority. There is ample evidence on the record to show that the Municipal President was not aware of the existence of Section 71, Municipal Act. under which he could take action again-t the petitioners. the legal objection taken to the convictions under; Section 71 of the Act. therefore, prevails and the conviction of the petitioners u/s 74 of the Act is set aside. Conviction u/s 188, Indora Penal Code, read with the Notification referred to above also cannot stand. The contravention ia that of an order promulgated by a public Servant which is punishable u/s 188, Penal Code. But u/s 189, lndore Criminal Procedure Code, the Court cannot take cognizance of an offence punishable Under Section188, lndore Penal Code except 00 the complaint in .writing by the public servant concerned. In this case there was no complaint made by the Home Secretary to the Government and therefore, the Court erred-in taking the cognizance of the offence u/s 188, Indore Penal Code.

For these reasons the conviction and sentences passed on the two petitioners are set aside. The fines if paid shall be refunded. the petitioners are discharged,